Good and Evil in Art and Law: An Extended Essay

Cover Illustration Among Mikhail Alexandrovich Vrubel’s (1856–1910) best known paintings is his (sitting) Demon, inspired by the eponymous poem of Mikhail Lermontov, the most Byronesque of Russia’s poets. The poem describes the doomed love affair between the Demon and a Georgian Princess, Tamara. The story inspired a series of paintings, some depicting the Demon sitting pensively, others floating aimlessly around the world, wile in yet others he is shown with the object of his affections. The sitting version here reproduced, which caused a huge stir when it first appeared, captures the Grecian beauty of the Demon’s head, his loneliness, and melancholic nature caused by his inability to rid himself of his evil nature. The painting owes its fame not only to its aesthetic appeal but also to the fact that it captured the ambivalent mood of most turn-of-the century Russians, torn between westernisation and Slavism, modernisation and tradition. These dilemmas, agonising for all, proved too much for some, Vrubel himself eventually succumbing to severe depression and dying in a Moscow sanatorium.

Basil Markesinis

Good and Evil in Art and Law An Extended Essay

Sir Basil Markesinis, QC, FBA Middleton Stoney House, Oxon, UK This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machines or similar means, and storage in data banks. Product Liability: The publisher can give no guarantee for all the information contained in this book. The use of registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. © 2007 Springer-Verlag / Wien Printed in Germany SpringerWienNewYork is part of Springer Science + Business Media springer.com Cover Illustration: Seated Demon, 1890 (oil on canvas) by Mikhail Aleksandrovich Vrubel (1856–1910) © Tretyakov Gallery Moscow, Russia/RIA Novosti/ The Bridgeman Art Library Typesetting: Composition & Design Services, Minsk 220027, Belarus Printing: Strauss GmbH, 69509 Mörlenbach, Germany Printed on acid-free and chlorine-free bleached paper SPIN: 11943846 With 8 Color Plates Library of Congress Control Number: 2006938804 ISBN 978-3-211-49918-4 SpringerWienNewYork

For Eugenie With love and gratitude

Preface The text that appears between the covers of this book is really a prolonged essay. It does not attempt to persuade or transform beliefs or values – though it does put to the test quite a few – but has mainly given me the chance to think aloud and reflect. Nor is it aimed at the scholarly aficionados of a particular author, who sometimes write (or give the impression of writing) books for each other’s delectation but whose learning has nonetheless been invaluable in trying to understand the many writers and works of art described herein. Instead, it targets the general educated public who might wish to ponder over the notions of “good” and “evil” and consider how law and art have handled them in their own distinct but overlapping ways. In writing this book I have thus, naturally, drawn on the works of experts and also taken advantage of the kind comments of a few colleagues who read earlier versions of my manuscript. Published works which I have used are referred to in the footnotes which are extensive, mainly to give the interested reader more precise references should he wish to pursue further points made in my commentary. Including such notes was necessary not only for reasons of intellectual integrity but also because on many occasions I have endeavoured to offer a more personal, I would suggest contemporary – others might call it controversial – interpretation of the characters examined in this book. The truly interested reader will thus, clearly, get a better overall picture of the complexity of some of these personages if he also looks, however briefly, at the often differing interpretations offered by others; but the general reader can, on the whole, ignore them completely if he does not wish to become involved in details. Orally given help and guidance is more difficult to acknowledge properly. Since I cannot repay through notes what our German colleagues felicitously call the “literary debts” incurred in writing this book, I must, at least, mention the names of some of

Preface

the most recent creditors. In alphabetical order they are: Professor Dr. Hans Joachim Cremer of the University of Mannheim, Professor Jörg Fedtke of University College London, Professor Stephen Guest of University College London, Dr. Anthony Karampatzos of the University of Athens, Professor Dr. Helmut Koziol of the Austrian Academy of Arts and Sciences, Mr. Martin Matthews of University College, Oxford, Ambassador Alain Plantey, former President of the French Academy, Professor Dr. Hannes Unberath of the University of Jena, and Dr. Florian Wagner von Papp of the University of Tübingen and University College London. The text was also read by two former students of mine whose assiduity and perspicacity have impressed me over time. There are Ms. Meredith Byars JD, formerly Chief Editor of the Tulane Law Review, and Ms. Melissa Potápova of the University of Texas at Austin, who also prepared the Names Index and the Select Bibliography. To all I extend my grateful thanks. By far my greatest debt, however, is to my wife Eugenie. For as a trained scholar in literature and literary criticism she guided me through many difficulties as well as giving me invaluable advice as to where to begin my reading as far as Russian literature was concerned. Naturally, neither she nor any of the above friends bear any responsibility for what I have written, though they share in whatever credit the book might earn. The book is principally dedicated to my wife who, along with my two children, has for so many years put up with my singleminded devotion to my work. But it is also offered as an official “thank you” to all my law colleagues at the University of Texas at Austin (especially its President, Professor William Powers Jr. who first proposed to give me tenure even though I was in Austin only on a part-time basis) for their long-standing friendship and hospitality; the Tarlton Law Library and its courteous and knowledgeable staff for making research on its premises such an enjoyable experience; and Mr. Gibson Gayle, next to the late Charles Alan Wright, my oldest and truest friend in Texas, for supporting me (along with the M. D. Anderson Foundation of which he has been Trustee for many years) without fail in all my efforts to enhance the international profile of that great American University. —

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In the same vein I offer my sincerest thanks to my colleagues and friends at the University of Ghent in Belgium; for it was there that the idea was first conceived during one of many, marvelous, and most productive visits at their famous Law Faculty. Indeed, it was in Belgium that my “international career” began over twenty-five years ago thanks to Professors Raoul van Caenegem, Marcel Storme, and Hubert Bocken. My debt to them is exceeded only by my feelings of sincere friendship towards them and their institution. Finally, grateful thanks are extended to the Bridgeman Art Gallery and, more specifically, to Miss Emilie Janvrin (who spent much time generously helping me and the publishers with the attendant technicalities) connected with the acquisition of the excellent transparencies supplied for the book jacket and illustrations reproduced in this book. Maussane les Alpilles, January 2007

Basil Markesinis

P.S. In my text I have used the names of the ancient gods in Greek (e.g., Zeus) when referring to the Iliad or the Odyssey and in Latin (e.g., Jupiter) when citing Virgil. By the same token Poseidon becomes Neptune, Hera became Juno, Aphrodite became Venus and so on.

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Contents Chapter One Setting the Scene

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Chapter Two Six Figures: Real and Imaginary

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2.1 Evil in the world of art 27 (a) Don Giovanni: the irresistible amoral 27 (b) Faust: the restless spirit 28 (c) Satan (from Paradise Lost): the fallen grandee 30 2.2 Evil in real life 31 (a) The murderer in Roper v. Simmons 31 (b) The recidivist child molester 33 (c) The intruding journalist in Kay v. Robertson 34 Chapter Three The Appeal of the Characters

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3.1 In literature 37 (a) The evil character is larger than life; he is made impressive even when fallen and disgraced 37 (b) The artist may even wish to make us prefer the “bad character” to the “good” 41 (c) Motives recognized / shared by humans 49 (d) Are the human motives ascribed to evil so universally reprehensible? 51 (e) Why does the anthropomorphic conception of “God” invariably appear so haughty, remote and cold? 60 (f) Deviating from the “expected” pattern 66 (g) The loneliness of evil (and the genius) 69 3.2 In law 73

Contents Chapter Four Just Deserts? 77 4.1 The treatment of the villain in art 77 (a) Predetermined summary punishment 77 (b) The punishment is severe if not excessive 81 (c) The passage of time and its effect on the interpretation of the law 85 (d) The lack of appeal, even in theory, against the Divine sentence 88 4.2 In law 90 (a) Better treatment for the accused 90 (b) Taking into account his personal characteristics 90 (c) Remission of the sentence 92 (d) Continued concern for the wrongdoer’s rights 93 (e) The balancing process of legal reasoning 93 Chapter Five Some Technical Reasons for the Differences

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(a) (b) (c) (d)

Divine justice has clear lines to follow 98 The need to protect the villain 99 Does the law neglect the good? 100 Human justice must reflect a changing society; Divine justice is largely immutable 101 (e) Different tasks 105 (f) The lawyer’s need to convince 106 (g) Motives, outlook and mentality 107 Chapter Six The “Flawless” Hero

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(a) Aeneas 111 (b) The Cid 115 (c) Flawed and human; flawless and wooden: a Russian twist to the debate 121 Chapter Seven Controlling People’s Thoughts

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(a) Another form of evil? 131 (b) Soviet literature from the early 1930s onwards

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Contents (c) The effects of control 144 (d) The way the pressure was applied Chapter Eight Joining up the dots

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(a) First theme: the dependence of art and law on life 154 (b) Second theme: the connection of art and law 171 (c) Third theme: the interaction between the real and the invented and how the latter can enrich the former 180 (d) Fourth theme: “perfect” v. “imperfect” justice? 198 (e) Fifth theme: “good” or “bad” and the alternative of the ambiguous human being 202 (f) Sixth theme: the character as a reflection of its creator’s real life experiences 209 (g) Seventh theme: the ambiguous nature of humans 219 (h) Postscript: the gathering clouds 223 Works referred to in this book Index of names 251 About the author 263

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Chapter One Setting the Scene Throughout my professional life I have been concerned with rules that regulate social behaviour, in general terms “punishing bad” and, more often, “enabling” those whose activities are considered to be “good”, i. e. furthering their own and society’s interests. Understanding my background and intellectual aims is important for the reader if he is to understand the starting point of my thinking as well my own set of biases, so I must begin by making them clear. The prime aim in my work as an academic and practicing lawyer has been to study law in its international dimension. More precisely, I have tried to understand the rules adopted by different systems and find ways to “bring them closer to each other” not only in order to emphasize my belief in our common humanity and a minimum of shared values in which I believe passionately but which so often are concealed by state, religious, or racial bias, but also because I have always believed that we might learn more from one another’s “good” ideas. I am, in short, one of those who have celebrated difference, not only because I find it intellectually enriching, but also because – paradoxically perhaps – it has stimulated me to discover hidden similarities. Secondly, as an academic with a deep interest in what I have always called the “real world,” (stemming both from my indirect but long association with the world of European politics but also from my dislike of the reclusive attitudes of academics and judges) I have also tried to give my writings as practical an orientation as I could imagine the world beyond the cloisters required. This has often led me to mistrust purely theoretical explanations for human conduct, always seeking – though not always successfully – interpretations which struck me as being closer to real life. Likewise, it led me to a degree of reconcilia-

Chapter One

tion with the ideas of relativity and uncertainty. Undeniably, this came at a cost; and since Cardozo, as always, expressed the feeling better than most of us ever can, here are the words1 which echo the frustration as well as the final coming to terms with the unending attempt to make sense of things in this life. This, of course, has been a voyage which anyone who has had to grapple with law and its notions has undergone at some time or another. Cardozo thus wrote: “I was much troubled in spirit, in my first years upon the bench, to find how trackless was the ocean on which I had embarked. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience. I found with the voyagers in Browning’s ‘Paracelsus’2 that ‘the real heaven was always beyond.’” I think these thoughts apply just as much to any attempt to understand “good” and “evil” as they do to other contexts so it is wise to keep this warning well in mind while reading what follows and appreciating my attraction to relativism. Thirdly, the realization of the fact that we all, especially the Universities, live in a world of limited resources has, over the years, led me to advocate the careful choice of subjects offered at Universities and, closer to home, law faculties. The time for “dead subjects” like Roman law to be dropped from the law curriculum and to be replaced by legally relevant and important 1 The Nature of the Judicial Process (1921), pp. 166–67. 2 Robert Browning’s (1812–89) Paracelsus published in 1835 was the poet’s second main work after Pauline: A Fragment of a Confession published four year earlier and dealing with the progress of the soul through many troubles to final peace. The second work, inspired by the work and peripatetic life of the Swiss alchemist, physician and philosopher Paracelsus (or Theophrastus Bombastus von Hohenheim: 1493–1541) also deals with the search for scientific truth and the difficulties of finding it.

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courses on aspects of comparative or transantional law has always been a favourite theme of mine. For academics like politicians must know when it is right to get rid of dead wood. But this has never entailed me favouring an impoverished curriculum as I made clear in my inaugural lecture at the University of Oxford more than ten years ago3; nor have I ignored the wider historical and literary literature as a brief glance at my published work will immediately reveal. This means that this book inevitably falls within the broad category of Law and Literature, follows this tradition of mine and underscores my belief that the Law Faculty Curriculum must be kept functional but also broad to the extent that financial conditions permit. But I have deliberately italicized the word and between Law and Literature for this is not a book solely devoted to Law in Litterature nor is it a book dealing with Litterature as Law. I stress all this because, though I value the wider educational benefits that a student can derive from being exposed to literary texts and works of art, in the absence of concrete practical examples I remain on the doubting side as to how much literature or, more generally, art can assist legal reasoning in the strict sense of these words. I return to all these points in various parts of the book, especially in Chapter VIII; but I also raise them here in order to make abundantly clear that this book is one written by an eclectic who refuses to belong to any one school of thought valuing his ability to pick and choose from what is available in the market place of ideas. I feel this warning is hugely important since the literature on this broad subject has become, in my view, far too politicized in the direction of either the Right or the Left. The reader of this book will soon discover that I am critical of both. Finally, my professional training taught me that conduct and events are not always what they appear to be; that excuses or mitigating factors had to be taken into account before finally pronouncing judgment on them; and that nothing should be taken 3 “The Comparatist (or a Plea for a Broader Legal Education)”, in The Yearbook of European Law (1996) reprinted in Foreign Law and Comparative Methodology: A Subject and a Thesis (1977), pp. 15 ff.

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either for granted or as being proven until subjected to individual scrutiny. High authority, be it temporal or spiritual, thus never had any numbing power on my thought. Persuasion is what mattered even if this meant admitting that one is / was wrong. The present work is, in some respects, different from my purely legal work. It is, as already stated, an interdisciplinary essay in the tradition of “law and”, at present more fashionable in the USA than in Europe. It represents an effort to look at art and especially literature in juxtaposition with law and speculate on how the two disciplines approach the same subject of “good” and “evil,” the way they react to the latter, the manner in which the evil-doer is conceived by art and is found in real life, and, finally and more importantly, what one discipline might gain from the insights of the other. I call it an essay, since it does not aim to pontificate or persuade by means of discursive or oratorical argument given that when I started writing this book I did not have a particular point of view which I wished to promote. Rather, I felt it might be beneficial, certainly to me but perhaps also to others, to ruminate and speculate about notions, authors, and their works of art, and explore particularly how they had treated good and evil and those who stood for it. In pursuing these aims, the background, experience and attitudes briefly mentioned above turned out to be crucial. To the extent that they proved useful to this different venture remains to be seen. Nonetheless, I see this book as a continuation of a life’s work. Seen in this way, it is natural to claim that this backdrop has, also influenced my assessments of works of arts and of the views of their creators. If this makes my views original or, at least, different from existing opinions, it does not also imply that they are correct. I shall be content if they are judged to be arguable.

What started my thinking on this subject were the oft-repeated complaints made these days concerning our system of justice and how it deals with “bad” people. Whether one is referring to its civil or criminal sides, hardly a day goes by without some complaint being formulated, accompanied by a demand for change, —

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usually to be achieved by means of new legislation. Thus, in my country, if it is not the government complaining about how lenient the judges are in their sentencing policies, or how its own Bill of Rights may not be working as expected, it is the Press whining about inadequately punished rapists (which, like so many other such topics, strikes me as being too complex to be handled through headlines), recidivist thugs, the premature release of prisoners (often but wrongly attributed to the Human Rights Act 1998) the growing cost of the prison service, coupled with the opposite call for more criminals to be committed to prison, or, at a lower level of excitement, predicting the apocalypse that will ensue should privacy ever become an independent heading of tortious liability. As if the Press was not destructive enough, not least through its talent to over-simplify complex issues (and most commentators seem to me to be too quick to allow the invaluable role a free journalism can play in the political process to excuse sensational, biased or irresponsible journalism), our politicians also carry part of the blame in the degradation of our institutions. This “mistrust” of our institutional structures is thus often fed by statements which they make in an attempt to turn to their advantage popular complaints but without taking into account the eroding role that such statements have on our political institutions. To be sure, one expects opposition parties to sound the trumpet of doom at the slightest sign of discontent. For gone are the days when their chance of coming to power depended on their own virtues rather than the government’s mistakes In Britain, a recent spate of cases involving re-offending prisoners after early release from jail fuelled tabloid frenzy and led even the Prime Minister to call for new legislation that would bring about “a profound rebalancing” of the rights of the victim and the accused. This call, further strengthened by court decisions refusing governmental attempts to deport offenders accused of inciting terrorism (again apparently based on the Human Rights Act), led Mr. Blair thus to conclude that:

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“The criminal justice system is the [sic] public service most distant [sic] from what most reasonable people want.”4 Such populist statements might just about be understandable (if still criticisable for their sweeping terms) had they come from a newly elected head of government who was inheriting a bad situation. But the condemnation sounds less than convincing when it comes from an experienced and talented leader who has been in office for over nine years, has been supported by huge parliamentary majorities effectively allowing him to legislate at will, and one who, additionally, has already passed during this period over forty “law and order” bills. One way to react to such pronouncements is to do what a leading a human rights expert – Lord Lester of Herne Hill – did and attribute them and their tone to a “desire to appease the tabloid press and take people’s eyes off the ball.”5 A kinder but, in essence, just as severe response would be to say that the piecemeal legislative amendments, which such political outbursts of indignation lead to, are not the best way to handle problems of such magnitude, real or imagined.6 Nor does such way of reacting to this public attitude strengthen the latter’s belief in our institutions; on the contrary, in the long run, it weakens them. My own quick answer to this idea of piecemeal, un-ending legislation, phrased to accommodate the inevitable clash of interests that it will give rise to, is that it represents a bad way of pursuing law reform. I was thus delighted to read recently that the Vice President of the French Conseil d’Etat and thoughtful enough jurist to be Member of the French Academy, expressed similar

4 The Times, 16 May 2006, p. 6. 5 For the benefit of non-English readers one should explain that the last comment refers to recent adverse publicity given to the British Government and the perceived need for it to re-launch its image as being strong on issues of law and order. 6 In Britain, a thoughtful account of the civil justice system can be found in the monograph of Professor Ross Cranston – until recently Solicitor General – entitled How Law Works: The Machinery and Impact of Civil Justice (OUP 2006).

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views about similar trends in his own country.7 Much as I admire M. Denoix de Saint Marc for his frankness, I am not sure I find it comforting to hear that his compatriots are making the same mistakes that we are. Important though it is to dispel many of the legal misconceptions which surround this issue, I resolved not to address them as a lawyer writing for lawyers would do. For what could one more book or article written by a legal scholar in technical terms hope to achieve when, these days, the way the law is shaped in Parliament ultimately depends so visibly on party-political calculations? Instead, I began asking myself how right were we to complain so incessantly about the defects and imperfections of our laws, courts, and judges. Has not our system of justice made huge forward strides compared to where it was fifty and certainly one hundred years ago? If it has, as I am sure is the case, why was not this ever stressed by the professional complainants? For if society had its belle époque one hundred years ago, law most certainly did not. Faults and errors notwithstanding, I thus do not share the view that the modern system of justice is bad. I accept even less the view, propounded by theologians and philosophers over centuries, that human laws are but an imperfect manifestation of the more abstract, more perfect, but also unattainable “idea” or “form” of justice expounded by these unworldly systems. Certainly the idea of divine justice,8 even when seen through the improving artistic rather than purely religious lens adopted in this essay, and the belief in its perfection versus the imperfection of its human counterpart, increasingly became questionable in my mind. Indeed, as the reading progressed the one thing that came to annoy me even more was the idea that statement A was better than statement B simply because it was found in some religious text or the work of some religiously inclined writer.

7 M. Dennoix de Saint Mark in an article published in the daily Figaro of 13 March 2006. 8 In this essay I thus do not deal with examples of laws (such as those granted to the Israelites in Exodus) which constantly vacillate between religious and secular matters and, on the whole, deal more “simply” with the latter as one would expect of societies less complex than ours.

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By now I was thus on the path of not only arguing that our justice system was not as bad as the professional complainants made it out to be, but that in many respects it was more fair and more sensitive to the conflicting interests which are always present whenever there is a dispute of any kind, than its divine or artistic models. Indeed, my thesis is that religious justice – and in practice my knowledge, such as it is, draws mostly on the Old and New Testaments – is rigid and ill-suited to the demands of a lay society of our times. Rabbinic or Christian gloss on some original texts has not, in my view, made religious ideas of justice either softer or fairer than they were when originally announced. This led me to look at how villains of all sorts had been treated by art and law. This involved not looking at evil in abstract terms but exploring how art and law had each understood the world, described it, and treated the “characters” who displayed varying degrees of badness. It also helped bring out more the nature of “bad” by looking also at “good” and the treatment it has received from writers and lawyers alike. Indeed, as always happens when opposites are looked at in juxtaposition, I found “bad” was often more mixed, ambiguous, and human, than the less easily described “good.”

Before moving to my subject proper, six preliminary – though essential – points must be made. First, this book is not about religion though it does touch upon topics which have occupied all major monotheistic religions, including their notions of justice. Because I do not hide my worries and concerns about these notions – and what is the use of writing a book if its author sets out to hide his own views out of fear or extreme politeness? – it does not mean that I set out to write a book that attacks religion(s). In religion I have found deeply appealing ideas (often mixtures coming from other religious or philosophical systems), a code of ethical behaviour, (in its essentials extraordinarily similar in most major religions that I know something about), beautiful images (which some religions allow them to be pictorially reproduced), and – for me the —

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most attractive feature of all – inspiration for works of art, particularly pictorial art, music, and architecture. But this “light” (in the sense of illuminating) side of religion must not stop us from seeing its “darker” aspects: the crimes and wars committed in its name, the greed of some of its officials, the shrewd exploitation of the gullibility of the masses, and the deficiencies of its system of justice to mention but a few. I have criticized these things not only because I do not like them but also because, as I explain over and over in this book, I am not attracted by the idea of absolute and rigid notions and believe that the more relativistic approach adopted by lawyers in their work can be usefully applied to some of the topics discussed in this book. Secondly, this book covers much ground in the sense that it draws facts and ideas from different branches of human knowledge. This seemed necessary if one was to try and offer some support for the kind of wider themes expounded in Chapter VIII, below – the longest and most complex chapter of the book. But breadth of material and vision had to be bought at the cost of a certain lack of depth. Most of this essay is thus not intended for literary specialists who have spent their lives writing about one (or mainly one) author or book only, but the generally educated reader who wishes to rove widely, looking at different conceptions of good and evil. I have targeted this group of potential readers since in our times the demand for specialized knowledge means that most students, certainly law students and practicing lawyers but also students of other academic disciplines, have little time for wider reading even though this broader culture can impinge on their own specialization, their view of the world in which they are going to live, and even their standing in society. This trend for less general reading is getting worse, not better, so maybe this small book can play its part in filling this gap. To return to my earlier statement that this work differs from my previous books on law, I need to add a caveat. For, on reflection, it borrows the comparative techniques developed in my earlier law books devised to bring different legal systems together and applies them to this study which tries to find inter-linking strands of thought across disciplines and in literary works written in different cultures and at different periods of time. This —

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weaving of links across time and subjects is not, of course, without its dangers; but to a general reader it may be useful to show the unity of human concerns for that is really what this linking is all about. Humanity and tolerance are thus themes to which I return constantly not only because I like them and wish to encourage them, but also because they stand apart from the rigidity and intolerance which religion and any other firmly held (lay) ideology tend to foster. Thirdly, I have tried to look at my main subject from the point of view of law and art. This, of course, includes music and pictorial art in addition to literature. Obvious though this (broad) definition is, I make it since I get the impression that in the USA the law and literature ever-growing list of publications tends to be limited to literature proper and ignores the interactions with other branches of the world of arts. This book, inevitably, reflects this imbalance but does not approve of it. Having said this, I must hasten to add that if one searches carefully one can find a few works discussing, for instance, law and music.9 But in my view, though pieces such as Levinson /Balkin article give their authors the opportunity to display10 the breadth of their reading, they rarely – I feel – show in concrete terms and by means of specific examples how the study of the one branch of intellectual creativity can aid the work of the others. Thus, if one looks, for instance at the Levinson /Balkin article one finds concluding observations that are couched in 9 Thus, see, Sanford Levinson and J. M. Balkin “Law, Music and Other Performing Arts”, 139 U. Pa. L. Rev. 1597 (1991). I am only aware of two other articles written by lawyers and dealing with the law / music relationship. They are, chronologically, Jerome Frank’s “Words and Music: Some Remarks on Statutory Interpretation”, 47 Columb. L. Rev. 1259 (1947) and John Ely’s “Another Such Victory” Constitutional Theory and Practice in the World Where Courts and No Different from Legislatures”, 77 Va. L Rev., 833 (1991). Interestingly enough Ely concludes that for the purposes of his survey the study of jazz offers little guidance to constitutional interpretation, a demonstration which, as I say at the end of my brief remarks above, still remains to be proved because of lack of specificity in the legal literature which advocates this usual borrowing and learning. 10 An Englishman might be tempted to use the words “show off”, but in the case I have in mind this might be too unfair to the learned authors.

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general terms that appear to support the interaction between disciplines but which, in practice, do not seem to stand up to thorough scrutiny from the lawyer’s11 point of view. This, for instance, is what they say about the need to adapt the Constitution of the USA through judicial interpretation and how modern musical adaptations of well-know musical pieces may hold out some clues as to why this may be inevitable. “It has…been feared…that too much ‘adaptation’ would mean not the endurance, but rather the death of the Constitution. Yet how is one to tell the difference? Only half in jest do we announce that the subtext of this review is the question whether the performance of constitutional interpretation is better analogized to the Hanover Band’s version of the Pastoral Symphony12… We do not mean to suggest that the choice must be exclusively between these two alternatives. Many other musical analogies might be suggested as well. We do mean to suggest that asking such questions – and wrestling over the answers – helps illuminate the enterprise of constitutional analysis, including the particular problems posed by this enterprise for those who must confront the profound impact of modernity has had on our political and legal culture.”13 While admiring the imagination of the authors and envying the broad sweep of their reading, I regret to say that I belong to 11 This term, too, needs defining. For the jurisprudentially inclined lawyer – mostly inhabiting the academic world – the article may prove fascinating. For the judge or practitioner on the other hand it is more likely to be of little use, indeed, I would hazard the guess that it will remain unread. In that sense, the Levinson /Balkin article confirms Judge Posner’s doubts (expressed in his Law and Literature monograph), that legal analysis does not stands to gain much from literary interpretation. Personally, I regret this conclusion since I have instinctive sympathy for the Levinson /Balkin cultural approach to law. But the Posner objections will, I think, persist until one can counter them with specific examples / illustrations which, in my view, the Levinson /Balkin essay, despite its size and its interminable annotation, does not do. 12 Described at pages 1619 ff of the Levinson /Balkin article. 13 Ibid., at p. 1654. Emphasis added.

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those who will not find that statements such as the above (along with the supporting text) will help “illuminate the enterprise of constitutional analysis” or interpretation. If the thesis is to prove its worth in practice, and have a value that goes beyond the undoubtedly important exhortation to provide to our students a broad education, I would have thought it will require more concrete examples showing me (and those who undertake this task routinely) how this interaction can work in practice. A case where the method was used, or an example of a case where the result might have been different had it been used, is what one needs if one is to counter Judge Posner’s skepticism. For until this is done, Posner’ view that “The puzzles about the Constitution are so different from those about Hamlet that it is unlikely that a Hamlet scholar will have anything useful to say about the Constitution or a constitutional scholar anything useful to say about Hamlet.”14 will remain convincing unless, of course, one comes to see in the study of law and literature primarily a movement that aims to enrich the academic curriculum. I return to this theme in Chapter VIII below. Yet my plea for concrete illustrations, born out of forty years of studying and teaching foreign law, is not likely to be answered. For the debate about law and literature, especially if it is seen as part and parcel of the wider debate about the place and role of the critical legal studies movement in the USA, has become, as I have already stated, so deeply politicized that it makes the views of the dueling scholars immensely rigid and un-responsive to fine tuning. The discussion over the utility of the Hamlet scholarship as an interpretative device for the USA Constitution thus remains unchanged, all involved scholars standing by their positions and refusing to budge or address in a concrete man14 Richard Posner, Law and Literature (1998), p. 248, responding to Professor Levinson’s article “Law and Literature”, 60 Texas Law Review, 373, 391 (1982).

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ner their opponents’ objections,15 while thanking each other for the help they have given each other by reading their respective manuscripts. In my view, this does not advance the debate in any significant manner; nor does it make it possible to intervene effectively and re-orient it towards the educational value of law and literature as part of the law curriculum rather than the ability of this study in parallel to yield practical aid to the interpretation of legal texts. To the above thoughts, I would add one more. Personally, the attempt of Levinson /Balkin to base their advocacy of parallel studies on the impact of “modernity” – I would have used the phrase “changing world” – as a reason for the “adaptations” taking place in musical interpretations of older pieces, could turn out to be not only a shallow argument in favour of constitutional reform (in which they and I believe in); it could also turn out to be a dangerous one. Thus, were I Justice Scalia or, come to that Judge Posner, I would pounce on such statements to suggest that not only their authors trivialize the function of constitutional interpretation but also show the dangers of such analogies. For if modernity leads to “adaptations” or “jazzing” up of classical pieces, these new pieces are often products of changing “fads and fashions” and, almost by definition, doomed to a brief life. Beethoven’s Pastoral Symphony and the USA Constitution have, on the other hand, both stood the test of the time though, one might be tempted to add sotto voce, the former has done rather better than the latter. The lack of works linking law to music and comparing the two is even more pronounced when we move to law and pictorial art. In one sense this is less surprising. For though music (especially because of its connection with mathematics) was seen as

15 This is obvious from the way Levinson /Balkin respond to Posner in their article “Law, Music, and other Performing Arts”, 139 U. Pa. L. Rev. 1597, 1603 (and the rather feeble note 25) trying to suggest that Levinson’s original statement may have been taken in the wrong way. Personally, I deeply regret the missed opportunity by Levinson /Balkin to “concretise” their thesis, especially since they stress themselves their belief that the study of Beethoven or Shakespeare can provide a “practical [sic] aid” to the constitutional interpreter.

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an activity more suitable to “gentlemen” than painting (or masonry) and thus linked to liberal arts from early times, the link between painting and liberal arts in general, literature and poetry in particular, was not made until the second half of the 16th century. Painting thus languished far longer than music in the realm of “mechanical” (not liberal) arts, not suitable to speculation by cultured, gentlemanly figures We thus do not begin to see art being shown to have been shaped by poetry, especially Aristotle’s Poetics, until the times of Titian.16 Given this delayed connection, it may then not come as a surprise that the even newer linkage with law has not attracted much attention. Yet in my view it does deserve such closer study; and this need goes beyond the desirability for a wider cultural education which is stressed in different parts of this book. For though, once again, one is not talking of the way one discipline approaches its subject influencing the thinking processes of the other, the fact is that pictorial art has incessantly dealt with good and evil as well as crime and punishment. Its pictorial representations of these abstract notions not only helps “laymen” begin to apprehend them and, even, visualize them; it may also, in addition, suggest that the painter’s optic, often more dramatic than the writer’s more “understanding” approach, may be closer to the ordinary person’s reactions to good and evil than that of the lawyer or the judge. Finally, the pictorial representation of an evil event may, as we shall note further down, be executed in such a manner as to reflect not just its particular facts, time, beliefs and values prevailing at the time of its creation; it may also contain elements which make the picture not only an aesthetically pleasing work of art but also give its eternal significance, allowing later generations to see things in it which are more appropriate to their own times. This last point, of course, is very relevant to one of the themes that runs through this book. In my book I have thus tried, within the measure of my abilities, to move within areas of knowledge that lie outside my own 16 This link was recently explored in an exemplary manner by the late Professor Thomas Puttfarken, Titian & Tragic Painting. Aristotle’s Poetics and the Rise of the Modern Artist. (2005), es. chaps. 1, 6–8.

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field, to refer to music or pictorial art only to the extent that I felt that the relevant artist, had used the tools of his trade to depict in a fairly concrete manner his view on what (or who) was “good” or “evil”. But I have not gone beyond the more modest parameters I set myself, namely to examine how law and art have looked at “good” and “evil”, except in one major respect. That has been limited to my intention to show that great artists were, themselves, always anxious to give us clues to see that the notions of “good” and “evil” must be understood in a relativistic and changing manner. This, in my view, has not only ensured the classical (in the sense of enduring) nature of their works; it has also suggested an affinity with law and legal reasoning. For however one sees law –, e.g. as a command or as an emanation of power – in one sense it seems to adopt the same posture as the artists I examine in this work. In practice we thus tend to see its interpreters taking the same approach as the artists did in their work and doing so even when faced with apparently absolute terms or commands. For the time being, I am thus content to leave my contribution to this debate at this modest level and not attempt to take it much further. Fourthly, and this relates closely with the previous point, though information and ideas had to be drawn from a broad range of sources and different historical times, these sources could not be infinite simply in order to achieve relative completeness of treatment. For such amplitude would have required volumes if it aspired to show how infinitely nuanced has been the treatment given to “good” and “evil” by artists and lawyers over the centuries. So I limited my primary discussion mainly (but not exclusively) to a few well-know works – three dealing with “bad”17 and two dealing with “good” characters – as well as two schools of literary thought – one Russian and the other Soviet18 as well as

17 For further “evil-figures” in the world of literature, see Rüdiger Safranski, Das Böse oder Das Drama der Freiheit (2001), passim. 18 Focusing mainly on Lermontov, Turgenev, Goncharov, Gorky, Zamiatin, Bulgakov and Siniavskii. The choice of writers is explained in various parts of the text. In part, however, it was also dictated by the wish to avoid focusing on such giants of Russian literature as Dostoyevsky, which have so often been discussed by others who have written about law and literature.

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to a well-know opera and painting. As I make clear in Chapter VIII, the reference to Soviet Realism was not made because, on the whole, it gave rise to (aesthetically) good literature, but in order to illustrate my belief that “institutionalized” and “imposed” ideas of “good” are bound to be “bad” because they stifle human creativity and add to human misery, a theme to which I return at the end of Chapter VIII. Despite these limitation – inevitable I would argue – I believe that the choices made above, varied though not complete, can, along with the additional material found interspersed in this book, justify conclusions about the meaning of “good” and “bad” “characters,” their links with their creators (and their times), and prompt further reflection all of which come in the long Chapter VIII. For these reasons as well as my own “capacious ignorance, [this] book makes no pretence of being comprehensive, and I shall be more than usually unmoved by readers or reviewers who complain that this or that important figure is absent from its pages.”19 Fifthly, a warning is needed about the use I make of the words “good” and “evil.” In this book I have used these words because of their evocative qualities. But as my examples will show, I have also used them generically to cover all forms and shades of good and bad activities and sentiments which may or may not also be considered as moral or immoral. Thus, some words describing bad characters – such as scoundrel, rogue, bounder, or even villain – seem to have lost with the passage of time their ability to indicate in a precise way forceful denunciation, so I have only used them when the context seems to permit this. Others – like satanic, depraved, bestial or inhuman – clearly contain a strong moral element. Yet again others – such demented, deluded or deranged – may, because of the contemporary tendency to use psychiatry to mitigate the harshness of society’s consequence to an unsociable act, implicitly diminish our natural tendency to condemn and transform our disapproval into pity. 19 The sentence in inverted commas is taken from Stefan Collini’s delightful recent book Absent Minds: Intellectuals in Britain (OUP 2006), 8, which, in its introduction, defines the kind of difficulties also experienced in the writing of the present (but less ambitious) work.

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A strange German decision which even reached the Federal Supreme Court20 shows that sometime the “bad” person can not only be “innocent” but also be the main sufferer. For there a respectable middle aged couple were driving carefully (at 55 km / h on an designated highway permitting up to 130 km / h) in their well-maintained family car when the husband, who was at the wheel, had to swerve in order to avoid a wild animal which suddenly and unexpectedly wandered on to the road. In the course of doing so he caused the death of his wife. A criminal prosecution against him followed and he was found liable of negligent driving (fahrlässige Tötung) and convicted under § 222 StGB of the Criminal Code. This became part of his criminal record, attesting to his being condemned by the criminal court and thus, officially, being branded as a criminal, notwithstanding that he had to live for the rest of his life with the feeling that he was the cause of his wife’s death. In one sense, this man is thus “bad”; in another and very real sense, he is the victim of circumstances. When we pass from criminal to private law, the move away from notions of morality can become more pronounced, even if the particular from of conduct is disapproved by the law. Thus, breaking a contract is still “bad,” though many would nowadays not see it as morally wrong; indeed, there is a school of thought in the USA which argues that if it makes economic sense it should be tolerated, if not even encouraged, by the law. Pulling out of negotiations before the contract is concluded is, in English law, seen as a rule that preserves freedom of action, even if it harms the other side (though in other systems it is more easily condemned). Failing to act as a good Samaritan has even been seen as a symbol of the laissez faire law era which elevated private selfishness into a public virtue. 20 OLG Frankfurt VRS [Die Verkehrsrechtssammlung] 28, 364. The decision is important on the distinction between acts, on the one hand, for which a person will be held criminally liable and, on the other, involuntary bodily reactions (e. g., driver stung by a wasp close to the eye, swerves off the road due to intense pain) for which he may not be. The Court of Appeal saw the driver’s conduct as an “act” in the sense of the Criminal Code, despite the instinctive nature of his reaction; and the Supreme Federal Court approved. Though highly controversial at the time, the decision is still good law.

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The same degree of shading applies to notions of “good.” It is thus perfectly feasible to include under the notion of “good” the ideas of ideological conviction, courage, intelligence, will power, patriotism or self-sacrifice and not see “good” in the traditional Christian sense of charity, meekness, or pity. This, then, is not “good” in any way linked to morality but, at best, to notions of civic values and, at worst, political expediency. As we shall see in more detail in Chapters VI and VII, and at the end of Chapter VIII, such understandings of “good” and “bad” should not be confused with subjective value judgments about the aesthetic or literary merits (or demerits) of the works that embody them. But when an attempt is made to “impose” on others such canons of goodness, or dictate the structure that the work of art must adopt, then we may be moving back into the domain of bad, unacceptable, or condemnable, in short what I call in this book “evil.” This is especially true if the control over the mind’s freedom to create takes a particularly repressive form which it did in Soviet Russia for over forty years before the collapse of communism. To avoid misunderstandings with my reader I thus ask him from the very outset to adopt a similar open-ended attitude towards the use of the words “good” and “evil” and not to be quick to read in the terms I use throughout this book moral overtones. Perhaps, in doing so the un-biased reader may even move towards the position which attracts me, namely, that in their most perfect or extreme forms, good and evil are not only rare but essentially indescribable if not even unimaginable since they lie so outside the normal human scale of perceptions and imagination. The result is that this book has gravitated towards the centre and thus found some good things to say about “bad” and also express some doubts about things (or ideas) widely regarded as “good.” What I have already said will begin to point out one of theses, namely, the relativity of the notions of good and evil. This is not only because both these notions appear in life and literature in shaded and nuanced versions; it is also because the characterisation of a particular act or form of conduct as good or evil can also be affected by the angle from which it is observed –, e. g., moral, religious or political – as well as time. Time – perhaps, combined with success – can also turn a bad act into a good. —

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Thus take, for instance, the Palestinian freedom fighter of today, the EOKA nationalist (in Cyprus during the 1950’s) or, even, the Jewish fighter struggling against the British in the mid / late 1940’s to create a state for a long suffering nation in diaspora. All, in the pursuit of their aims, doubted and criticized at the time, committed acts of violence which some would describe as terrorist acts (or, in more modern terminology, sum up as “insurgencies”) and most would be seen as violent and even “bad;” and the same goes for those who tried to suppress these movements. Whether in fact such acts of violence were or not evil is thus determined by the observer’s political angle; and this could go as far as attempting to remove the evil nature of killing or causing human suffering in a myriad other forms. To me explaining this as evil but “justified” by invoking, for instance, the idea of maintenance of law and order, is, again, based on political not moral considerations. But, as already suggested, these examples also show that the passage of time can also somehow help remove the stigma of “bad” or “evil,” especially if the “protester,” “freedom fighter,” or “rebel” ends up by winning his struggle. If he is lucky, the ex-wanted “rebel” or “freedom fighter” may end up as a “state guest” in the capital of the country which had him proscribed as a criminal. If one person would best satisfy my bill it would be Nelson Mandela, first demonized by the British establishment only to shower him in later life with as many honorary doctorates as he had spent years in prison with the result that they all had to be awarded at…Buckingham Palace since the now “sanctified” President had not time to visit each of the Universities individually.21 In a world in which “nothing beets success” moralizing about good and evil becomes an extremely hazardous exercise. I shall return to all these ideas in different parts of the book – especially in the last chapter – by which time I hope these thoughts will have been made clear (though I do not sup21 The reverse occurred with ex-president of Rumania Nikolai Ceausescu who, after he was toppled by his people, had his insignia of Grand Cross of the Order of the Bath (given to him by the British Government when he was useful / good?) revoked now that he was officially acknowledged to be evil.

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pose any more acceptable to all those who have a closed type of mind). In the meantime, however, let me alert the reader to my belief that, with a few clear and indisputable occasions, “good” and “bad” – like beauty – can be said to be in the eye of the beholder … Indeed, “…it is the beholder who lends to the beautiful thing its myriad meanings, and makes it marvelous for us, and sets it in some new relations to the age, so that it becomes a vital portion of our lives...”22

Finally, a word must be uttered about omissions, not this time of authors, works, or legal decisions, all of which could have been considered in this text, but the omission of aspects of goodness or badness which, for various reasons, I have not attempted to discuss in this book. For instance, a “flourishing” life – what the Ancient Greeks called eudaimonia – may be shattered by reasons beyond one’s control. Professor Martha Nussbaum, in a book which is both learned and most readable,23 dealt with many aspects of this problem. There she also remarked that “by removing these conditions [which make for eudaimonia these]…events may affect, for good or ill, not only our happiness or success or satisfaction, but also central ethical elements of our lives: whether we manage to act justly in public life, whether we are able to love and care for another person, whether we get a chance to act courageously.” This transformation of a character from, say, calm to restless, magnanimous to mean-spirited, straightdealing to under-hand, honest to dishonest and so on, are all transformations from shades of good to nuances of bad. Thus Professor Nussbaum felicitously talks not just of the usual fragility of happiness but also of “the fragility of goodness”. And why should it be otherwise given that other mental states – such as happiness – or perceptions of human stimuli – such as beauty – 22 Oscar Wilde, The Critic as Artist. In this work I have used the reproduction found in Complete Works of Oscar Wilde (with an introduction by Vyvyan Holland). Harper Perennial Library edition (1989), 1029. 23 The Fragility of Goodness. Luck and Ethics in Greek Tragedy and Philosophy (1986, revised and with a new and long preface, 2001), p. xiv.

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can and often are transient and not immutable. If a literary example for these last two ideas is needed, we can find it in the way Goethe decides to write (or re-write) the ending of his Italienische Reise, a work that foreshadows many of the ideas which will influence his later ideas and works.24 For him, leaving Italy and returning to Weimar is tantamount to going into exile; and his memories of his paradise lost will, later, figure in some of his beautiful poems. This transformation of character, which accompanies declining circumstances, has fascinated me for a long time not only in the context of individuals but mainly in the context of the change of the “national” character which takes place when a nation’s political and economic fortunes decline or change. This, too, can mark a shift from “good” to “bad”. Attributes such as “dishonesty”, “under hand dealing”, “corruption”, or the abandonment of the notions of “fair play” or the idea that “a gentleman would never behave like that” – the last two being particularly expressions used to indicate the high qualities of Britishsness not possessed by other peoples – begin to appear once the (inevitable) decay of nations sets in. The vaunted “goodness”, “decency”, “correctness”, “propriety”, once found among its people, may thus wane, unless, as Socrates and others – mainly the Greek and Roman Stoics discerned two thousand years ago – the eudaimonia is based on a genuinely virtuous character, self-disciplining education, and other such factors which are not dependant on external elements such as power, wealth, position, health and the like. This, then, is yet another mutation of goodness worth studying, both at national and individual levels, showing that goodness is not only relative but also temporary. And, arguably, this refers to a goodness that can be “taught” and also shows how “characterforming” education can help maintain goodness in adversity. But it does not take much to make it clear that this is a subject on its own and, for reasons of space, its discussion had to be omitted in this book except in very general terms. 24 For more on this, see Dennis F. Mahoney, “Autobiographical writings” in The Cambridge Companion to Goethe (ed. by Lesley Sharpe, 2002), pp. 147, 152.

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Yet another aspect of goodness is only touched upon in this work but might warrant a longer treatment should this book ever go into a second edition. This is associated with a question which, I at least, consider to be deeply troubling: do we find – or can expect to find – goodness, decency, and the kind of moral and ethical behaviour which we tend to admire in people of extraordinary talent and ability? Of course, greatness, political, artistic, and creative, can co-exist with moral excellence; and we need not limit ourselves to thinking of Socrates or Mother Teresa or, my favourite because his goodness had, inter alia, such effect on art, Saint Francis of Assisi. These indicatively mentioned personages are, however, not only rarely possible to emulate; they are also fascinating subjects of study in any attempt – I suspect vain – to discover wherefrom they draw their inner strength: religion, character, inner conviction, education, or a combination of all? But when we think of other “great” people who left a lasting (and important) legacy to their nations and to the world of ideas, such Julius Cesar, the Roman Emperor Augustus, Justinian,25 The Florentine Medici’s,. Henry II or VIII of England, Napoleon, Bismarck, Calvin or Cardinal Richelieu or the sublime Renaissance sculptor Ginalorenzo Bernini – and I find it much easier to enlarge this list than the previous one – are we not forced to admit that the greatness of these people did not go hand in hand with personal moral greatness, tolerance, kindness, modesty, sensitivity, i. e., present the attributes we usually associate with goodness? This conclusion is more than backed by the lives of “great” men such as the above.26 And such conclusions

25 The most recent essay comparing Justinian and Napoleon is by Tony Weir “Two Great Legislators”. 21st Tulane European and Civil Law Forum, pp. 35– 51 (2006). The essay, written in the author’s well-know elegant style, notes the greatness of both these historical figures but also describes them “as moral monsters”. 26 Bernini, for instance, was a hot-headed Neapolitan thug – at least during the first half of his life – during which he tried to kill his own brother in Saint Peter’s and ordered his wife horribly disfigured for being unfaithful to him. In his masterpiece, The Ecstasy of St. Theresa, sculptured for Santa Maria de la Vittoria, the Cornaro chapel in Rome, is also “cheekily” full of indications that the Saint’s spiritual ecstasy is, arguably, depicted as a sexual orgasm.

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are not only interesting but also down-right painful if we ask ourselves – as we must – a further question: is this kind of greatness one which can only be attained in the context of extreme selfishness if not even a state of moral vacuum which free these personalities from all the restraints that guide and bind the behaviour of most if us and, perhaps, in the process even subdue, our creativity. For rules, though of the essence for orderly social life, are suffocating to those endowed with extra-ordinary qualities. We see this in their works27; find evidence of their attitudes towards a variety of topics (such as sexual morality, sex discrimination, the death sentence),28 which we nowadays consider to be important, in their speeches, diaries and letters; we finally sense this in their capacity for lateral thinking. At the end of the day, I do not think it is entirely improper to begin wondering whether their self-assuredness does not even give them the feeling that they are exempt from normal rules, including rules of morality. The German Chancellor Otto von Bismarck epitomizes this contrast between the public figure, intriguing, fascinating, powerful, indefatigable, and the private person of unfathomable cunning and unscrupulousness. A little-known passage – to English readers at least – of the Nobel Laureate Thomas Mann captures this duality perfectly. Mann thus described the man who dominated the last third of the 19th century in the way Napoleon did the first quarter, as29: 27 Justice Cardozo’s prose, with its frequent resort to archaisms and inversions of words, often shows how the violation of the rules of grammar can lead to truly great style. 28 Goethe, for instance, is problematic on all these issues though one has to bear in mind that his attitudes towards them represented the norm in his times. Telescoping our values into his era may thus be an unscientific way of condemning him. For further details thus see: Barbara Becker-Cantarino. “Goethe and gender” in The Cambridge Companion to Goethe (ed. Lesley Sharpe), (2002), pp. 179 ff. For his views on the imposition of the death sentence, which he thought should be imposed on a woman accused of infanticide, see W. Daniel Wilson “Goethe and the political world”, in The Cambridge Companion to Goethe (ed. Lesley Sharpe), (2002), pp. 207, at p. 212. 29 “Goethe, das deutsche Wunder”, reprinted in Thomas Mann-Dichter und Herrscher. Europäischer Geist in fünf Jahrhunderten. Ausgewählt von Rudolf Hochhutch, Buchgemeinschafts-Ausgabe, p. 9.

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“…a phenomenal political genius of German stock who, in three bloody wars, forged the Prusso-German domination and secured its hegemony in Europe for decades…a historical colossus with a high pitched voice; brutal, sentimental, and prone to nervous fits of weeping, all as the same time; a giant f unfathomable cunning and such a cynical candour of speech that it was not advisable to report on it officially (according to Lord Russell); a misanthrope and subduer of men through charm and force: a go-getter, realist, utter antiideologue; a personality of inordinate, almost superhuman dimensions, the absolute ego, who infected everyone around him with enthusiasm but also set the quaking…” It would be wrong, however, to use Bismarck as an example of a dual or mixed personality found only in the world of politics. What I say below about Oliver Wendell Holmes, drawing on old (but now forgotten30) and new and celebrated biographies,31 shows that I am far from excluding my own profession from this idea of separating professional greatness from any idea of personal decency and, even, attachment to a moral appreciation of the problems they are asked to resolve. These ideas are not only “painful” (as I said a few lines above); they are also far too complex and controversial to be the subject of part of a book and not form a book in themselves. Nevertheless, I mention them in passing because they once again confirm, I think, my doubts about the absolute nature of “good and “bad”. Indeed, I am inclined to suspect that even Judge Posner comes close to supporting the distinction I have made above (or something very close to it) when, after praising the aesthetic qualities of Holmes’ harsh (and coldly phrased) judgment in

30 John C. Ford, The Fundamentals of Holmes’ Juristic Philosophy’, 11 Fordham L. Rev. 255 (1942); Paul L. Gregg, “The Pragmatism of Mr. Justice Holmes”, 31 Geo L. J. 262 (1943); Francis E. Lucey, “Holmes – Liberal – Humanitarian – Believer in Democracy?”, 39 Geo. L. J. 523 (1951). 31 Albert W. Alschuler, Law Without Values. The Life, Work, and Legacy of Justice Holmes (2000).

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Buck v. Bell32 – described as a “a first-class piece of rhetoric” – he states that a distinction has to be made between “aesthetic and moral values”.33 For could not this be read to imply, as I am willing to suggest openly, that Holmes’s legal greatness as a judge was accompanied by a degree of moral deficiency and / or lack of human compassion? And if this strikes most readers who know about Holmes as being too damning a statement could we not at least suggest that in his writings the learned judge paid, at the very least, more attention in achieving aesthetic perfection rather than reflecting human values? Whichever of my formulations gains most support the fact is that, either way, in the case of people like Holmes we are prepared to accept (and even praise) the public persona, shunting to the back of our minds the personal attributes that do little credit to this same individual. I leave it to the reader to decide whether this “dual” assessment says something about our own “goodness” or properly reflects a need to distinguish the public and private persona of great men and women.

32 274 US 200, 207 (1927). The key extract deserves to be quoted in full since I think it was horrific in its coldness when it was uttered and even more so in our times making even the purely literary praise of doubtful taste. Holmes thus wrote at pp. 207–08: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [citation omitted] Three generations of imbeciles are enough.” 33 Law and Literature, 2nd ed. (1998), p. 273. How does the Holmes philosophy differ from the ancient Spartan custom of throwing impaired newly born babies into a nearby ravine to be killed by wild animals? And does it differ quantitatively or qaulititativly from some Nazi practices which Posner uses on p. 310 to condemn German judges doing the bidding of the Nazi regime? To me, reprehensible though this judicial submission was, it is different to the extent that it was, to some degree, the product of duress, a defence not available to Holmes.

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Chapter Two Six Figures: Real and Imaginary 2.1 Evil in the world of art (a) Don Giovanni: the irresistible amoral Mozart’s Don Giovanni, described as a “dramma giocoso” (a genre recognized at that time as trying to combine the elements of opera seria and opera buffa), was first performed in Prague on the night of 29 October 178734 and, a year later, in Vienna. Years after Mozart’s death, Da Ponte was to claim that the young genius, preoccupied from his earliest years by death and religion, had originally wished to make this a wholly serious work. But coming as it does from a happy period of his life to which we owe, among other works, his most beautiful (and optimistic) piano concerto in C no. 21, he must have easily been convinced to include the many amusing, even funny, parts we find in the completed work (which thus fully justify the sub-title of the opera). The darkness of the composer’s life-long preoccupation with death as well as the forbidding Majesty of the Lord begged for forgiveness in his Requiem, are thus not constantly present in this magnificent work, even though the hero is an amoral libertine who commits murder in the first scene, shows mental cruelty towards some of his lovers, and finally meets with his just deserts by being hurled into hell. Notwithstanding these less pleasant aspects 34 The first performance was, in fact, scheduled for the 14th but it had to be postponed twice, first because the score was not completed and then because one of the female singers fell ill. Even so, the “supper scene” at the end of the opera was worked out with the singers during the prova generale while the overture was completed on the eve of the 28th.

Chapter Two

of the opera, I call this a “magnificent” work and do so despite many criticisms expressed about the “character” of the eponymous hero. For many scholars have stressed the “troubling” aspects of the opera (from the point of view of morality, staging, and even music). But it is the “hero” who mostly concerns me here, and I wonder whether some of the critics have approached a Mediterranean theme with rather more Freudian psychology than a Sevillian, Italian, or Greek might find congenial or necessary in order to understand him. In any event, if theirs is the correct analysis – and for great works, there never is only one correct analysis – then what is the use of repeating it here? The reader can consider these different interpretations by consulting the rich literature on the subject35, among which I would certainly include a stimulating collection of essays commissioned by Jonathan Miller36 before producing the opera for the English National Opera in 1985 as well as a short earlier piece written by Bernard Williams, at different times Professor of Moral Philosophy37 at the Universities of Cambridge and Oxford.

(b) Faust: the restless spirit This (rarely performed) play (and here I mainly talk about Part I) is built around two sets of bets38 between God and Satan, Mephistopheles and Faust. Faust is chosen as the subject of one bet since he is one of God’s creations who, in God’s words, 35 Perhaps the classic work is by Edward J. Dent, Mozart’s Operas: A Critical Study (1947; 1962). See, also, Julian Ruston, W. A. Mozart: Don Giovanni, Cambridge Opera Guides (1981); Maynard Solomon, Mozart (1995) (with an annotated bibliography at pp. 606–07) and David Cairns, Mozart and His Operas (2006). 36 They appeared in book form in 1990 under the title Don Giovanni: Myths of Seduction and Betrayal, edited by and with an introduction by Jonathan Miller, henceforth referred to in this paper as the Miller Essays. 37 “Don Juan as an idea” in Julian Rushton’s Don Giovanni (Cambridge Opera Handbook 1981), pp. 81–91. 38 The most thorough analysis of the bets from the legal point of view (including many allusions to Goethe’s own legal training) can be found in Pan Papanikolaou’s The Faustian Agreement (2004) (in Greek).

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“though serving [Him] in bewildered ways [God’s] light shall lead him soon from his despairing.”39 Thus, from the outset, we know that God trusts him40 sufficiently to let him be tempted by Mephistopheles. Of the bets the one which, in a sense, matters most is the second, Mephistopheles promising to offer Faust an experience which will be so pleasurable for him that he will not wish to leave it for the rest of his life.41 Faust, whose restless spirit and unsuccessful search for knowledge42 have led him to study many subjects without having found complete satisfaction, is not going to be easy prey. In the processes of being exposed to various pleasurable sensations Faust is, in the end, presented to a pious and sweet girl of fourteen43 – Margarete or Gretchen – who falls for him. Under the constant prodding of Mephistopheles, Faust at this stage reveals his bestial instincts, deceives Margarete, seduces her, and finally abandons her but not before she has (unwittingly) killed her own mother through the use of a potion which was merely meant to send her to sleep so that she could be left alone with Faust. Abandoned, Margarete then kills the child conceived from her illicit cohabitation with Faust and 39 From the Prologue in Heaven, line 308–09 (“Wenn er mir jetzt auch nur verworren dient; So werd ich ihn bald in die Klarheit führen.”). The English renderings are, unless otherwise stated, taken from Philipe Wayne’s translation reproduced in the Penguin Classics. 40 Even though he knows well enough that he “must strive and striving he must err” – see line 317 (“Es irrt der Mensch so lang er strebt.”). 41 See lines 1699–1702: “If to the fleeting hour I say / ‘Remain, so fair thou art, remain!’/ Then bind me with your fatal chain, / For I will perish in that day.” (“Werd ich zum Augenblicke sagen: / Verweile doch! du bist so schön! / Dann magst Du mich in Fesseln schlagen, / Dann will ich gern zugrunde gehn!”). 42 Memorably proclaimed in his opening speech in his study, line 354 ff. This constant switching between subjects of learning, which leads him to alchemy, and then even to toy with the idea of suicide as a way to reach God, brings out Faust’s contradictory tendencies so beautifully expressed in his famous “zwei Seele” speech at lines 1110 ff. (“Two souls, alas, are housed within my brest…”). The idea of the two souls may well draw from Socrates’ rumination on the subject given in Phaedrus, 237 ff. 43 As Faust assumes in line 2627. This is crucial to him for in 18th century German law 14 was the minimum age for marriage.

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stands condemned by human justice.44 To cap it all, and with the help of Mephistopheles’ secret power, Faust murders her brother Valentin. Despite his misdeeds and his dark moments, however, Faust is in the end saved (unlike Marlowe’s earlier play or subsequent musical versions) because of Margarete’s penitence and his own restlessness which prevents him from settling down for the one pleasurable experience. The result is that Mephistopheles technically45 loses his bet with Faust and thus with God. At the end of the second part of Faust,46 and as a result of Margarete’s intercession with the Virgin, she is allowed to escort Faust’s soul to higher spheres.

(c) Satan (from Paradise Lost): the fallen grandee Written during the last years of his life while blind and disillusioned by the collapse of his political ideals closely linked with the Commonwealth of Cromwell, Milton’s masterpiece comes from the pen of a highly religious puritan who, from an early age, had received a prodigious education that gave him fluency in Greek and Latin as well as a good command of French, Italian, and Hebrew (but also a tendency to express religiously heretical

44 Recognizing Satan in Mephistopheles, however, she refuses his offer to help her escape, which leads him to urge Faust to get out of the prison before it is too late, for “she stands condemned anyway” by human justice (“Sie ist gerichtet”), only to be contradicted a few lines further down by a voice from above (“Stimme von oben”) stating that “she has been saved” (lines 4611–12: “Ist gerettet”). This is an interesting literary example of divine justice applying better the criteria of human justice, recognizing that Margarete lacked the requisite mens rea, and thus overturning the decision of the (human) court. 45 I stress “technically” for, in essence, Mephistopheles has largely succeeded in achieving what he set out to do. For, when making his bet with God, he had boasted that he could make Faust stoop so low that he would “eat dust and even delight in this” (line 334: “Staub soll er fressen, und mit Lust”). The reference here to dust, coupled with the use of the verb “fressen,” which is what animals do rather than humans (for whom the verb is “essen”) is, of course, an allusion to God’s damnation of the serpent in Genesis 3, 14. Thus, in substance if not in form, he too, goes away with some satisfaction. 46 Lines 12073 ff.

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view in works of prose). The story follows (fairly) closely the account of Satan’s rebellion against God and his expulsion from Heaven as summarized by Genesis and other biblical texts. Milton’ account of Heaven and Hell follow closely the Medieval imagery. Yet his descriptions of Satan (and the other devils) avoid the usual images of ugly, horned and tailed, creatures, depicted in red or blue (depending whether one wanted to emphasise Hell’s over-heated or freezing conditions) and, instead envisages him (at the beginning of the poem) as the most beautiful of angels displaying courage, grandeur, and unwavering47 singularity of purpose, even though all these feelings are fed by his undying wish for revenge and hatred. But Milton’s poem, to me at least, is more than the unique Renaissance epic it has always been seen to be; it is also a poem replete with autobiographical references and religious “heresies” which may help explain – in part at least – why evil in the poem is so often given “grand” attributes. As will become clear from what follows this is one of the themes most explored in this book.

2.2 Evil in real life (a) The murderer in Roper v. Simmons48 This is how the murderer and the murder are described by Justice Kennedy who delivered the judgment of the Court. “At the age of 17, when he was still a junior in high school, Christopher Simmons committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends,49 (…). Sim47 As he, himself, announces to his new environment when he says “And thou, profoundest Hell, / Receive thy new possessor, one who brings / a mind not to be changed by place or time!” (I. 252). 48 125 S. Ct. 1183 (2005). 49 Also of the same age.

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mons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors. The three50 met at about 2 a.m. on the night of the murder, Simmons [and the second culprit] entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, “Who’s there?” In response Simmons entered Mrs. Crook’s bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her. (…) Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.” From the above it should be clear that Simmons is vile, evil, the kind of person whom the man in the street would describe by using the expression “sick, sick, sick,” repeating the word three times not to suggest diminished responsibility as a legal defence, but as way of showing that words, alone, cannot describe the perversity of this criminal. Statistically, however, this kind of “bad” is rare in proportion to all the offences that are committed or all activity that one would call bad. It stands, therefore, at the extreme end of the spectrum of what is here considered, has no redeeming features. But it nonetheless calls into question the type of response civilised society deems appropriate; and it is at this level that most of the debate, moral as well as legal, has been conducted in recent times.

50 Though one of the boys left before the other two set out. This boy was charged with conspiracy, but the charge was subsequently dropped in exchange for his testimony against Simmons.

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(b) The recidivist child molester51 The facts, as given in the summary heading of the reported decision, are as follows: The applicants, a married couple, were released from prison after serving long sentences for serious sexual offences against a number of children. Having moved away from the area where the offences had been committed, they attempted to settle in accommodation elsewhere but on each occasion they were met by adverse publicity in the local press and an angry response from neighbours. In October 1996 they obtained a caravan and moved onto a site in an area where they intended to remain. By January 1997 the local police authority had received a police report from the area where the applicants had served their sentences indicating that they both presented a considerable risk to children and vulnerable people within the community where they settled. Some of the information in the report was known by the police not to be accurate. Members of the local authority social services department and probation service met on a number of occasions with a police officer from the child protection team to consider their response to the applicants’ continued presence on the site during the Easter holidays, due to begin on 28 March, when large numbers of children would be there. The officer met the applicants and sought to persuade them to move from the site before the holidays, warning them that if they did not do so the site owner would be informed of their record. By a policy document formulated by the local police authority to address the risk of re-offending by convicted paedophiles, information acquired by the police about such offenders could be released on a “need to know” basis to protect a potential victim, after specific consideration of the particular case and with the agreement of senior officers and advisers. Pursuant to the policy, on 27 March, since the applicants had remained on the site, an officer, after discussion with senior officers, showed the site owner material from the local press relating to their convictions. The site owner told them to move on and they immediately did

51 R. v. Chief Constable of the North Wales Police [1998] 3 WLR 57.

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so. The applicants sought judicial review by way of declarations that the policy and the decision to inform the site owner of their convictions were unlawful. The Divisional Court dismissed the application. The appeal by the applicants was dismissed by the Court of Appeal. In this case the bad nature of the conduct is also not in doubt; but sickness may be a word that should accompany it to suggest the need for a different kind of treatment. In law, though perhaps less so in moral discussions, this type of badness raises the question of balancing of competing interests.

(c) The intruding journalist in Kay v. Robertson The plaintiff, a popular actor, was injured during the unusual storms of 1986 when a piece of detached boards crashed into his car and embedded some very large nails into his cranium. Because of his celebrity status his treatment attracted much attention which led the editor of a pornographic publication to send two of his reporters to investigate his state. Pretending to be nurses they entered the restricted (for medical reasons) intensive care unit and proceeded to photograph him using flash light (clearly inappropriate given his cerebral injuries) and conducting an interview of sorts with him while he constantly fell in and out of consciousness. When his “best friend” found out about the incident, he attempted to prevent the publication of the story. An impressive array of different techniques failed, however, to give the plaintiff anything but the most meager protection – a statement that the interview was not published with his consent – because English law did not recognize the generic tort of privacy even though everyone – the judges and the Calcutt Committee which subsequently examined the case closely – realized that this conduct had been motivated by greed and was not just morally indefensible but also potentially dangerous to the plaintiff ’s health. In our last example we are, again, envisaging badness but the indicator is no longer pointing in the black area. What has happened is that we have now moved in the grey area where the —

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balancing of interests can become more difficult. Many might agree with the present author that this particular incident should have been condemned by the English courts. But the real problem is can we develop legal principles that will determine which intrusions the public will allow and which it simply will not sanction? Or are we to leave this to be done through the use of all forms of actions which we developed many centuries ago to cope with different types of societal problems. Here suffice it to say that this downward gradation of “evil” may, on occasion, be extinguished by the presence of an opposite “good” which may end up winning the day. The shadings of good and evil, which will be elaborated as this book progresses, must be beginning to become obvious. Obvious but also clear is the fact that in the middle, actors and victims, those who judge them and those who create them, begin to be mixed, confused, and even become ambiguous.

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Chapter Three The Appeal of the Characters 3.1 In literature (a) The evil character is larger than life; he is made impressive even when fallen and disgraced The assortment of Devils, as they contemplate their plight in Book II of Milton’s Paradise Lost, fully supports this statement. Thus, in his Homeric list of Satan’s generals, Milton starts with Belial, whose name in Hebrew means worthlessness, and whose “thoughts were low, To vice industrious but to nobler deeds Timorous and slothful.”52 Belial is depicted as a consummate advocate given that “his tongue, Dropped manna and could make the worse appear The better reasons to perplex and dash Maturest counsels.”53 In the words italicized above, Milton is, of course, warning us to guard against slick rhetoric; and just in case we have missed this

52 II. 115. 53 II. 112.

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point, made at the beginning of Belial’s speech, he rounds it off by saying:54 “Thus Belial with words clothed in reason’s garb Counseled ignoble ease and peaceful sloth, Not peace.” To me this is precisely what makes Belial a pragmatic and realistic politician, for he is not advocating the continuation of the war with the Almighty predicting, rightly as it turns out, more woes for himself and the rebel angels, but neither is he advocating surrender, i.e., repentance and capitulation, which would not have been in tune with the mood of the assembled devils and thus unacceptable.55 Thus, though learned authors have used such warnings, repeatedly made by Milton (the poet) throughout his poem to alert us against the deceptive rhetoric of Satan and his followers, I cannot help feeling that Milton, the pamphleteer, active in skillfully promoting his own political crusade, could not but have felt some sympathy with such talent. Otherwise, why introduce Belial with words of praise which would seem excessive if he were merely a cunning and deceitful advocate?56

54 II. 225–28 (my italics). 55 C. S. Lewis puts this well when he wrote that the “door out of Hell is firmly locked, by the devils themselves, on the inside” for the devils know that they will not repent. A Preface to Paradise Lost (OUP) (1942; 1961), p. 105. 56 “A fairer person lost not Heave’n! He seemed / For dignity composed and high exploit.” I. 110. To me, it is interesting that at the beginning of this book Milton does something similar for Satan where he sits him on an “exalted” throne to which “by merit [he is] raised.” The italicized words are thus (coincidentally?) identical to those used to explain the Son’s special standing, even though obviously the merit in the one case is one acquired through excellence and will-power whereas the other is defined by reference to loyal service and not “birthright”: III. 309. It is, of course, God’s “elevation” of his Son that is, arguably, the pivotal moment of the celestial revolution; but it also bears some affinity with renaissance political theory that allowed rulers to treat their kingdom as a possession instead of seeing their power over it as being held in trust. In such thinking it is tempting to see, once again, a potential clash between Milton’s republicanism and his theology, a clash which, by the end of his life (and the poem), is resolved in favour of faith.

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Mammon, who speaks next, is also given words which in any other context would be seen as inspiring.57 For example, echoing his leader’s earlier speech58 that the devils should not start a second war with the Lord, preferring to stay where they are, he says “Free and to none accountable, preferring Hard liberty before the easy yoke Of servile pomp.”59 The third speaker, Beëlzebub, is likewise introduced in a way which, at the very least, may suggest that the poet acknowledges his high standing.60 Thus Milton describes him so, just as he is about to start speaking: “Beëlzebub… With grave Aspect he rose and in his rising seemed A pillar of State. Deep in his front engrav’n Deliberation sat and public care And princely counsel in his face yet shone, Majestic though in ruin, Sage he stood With Atlantéan shoulders fit to bear The weight of mightiest monarchies”.61 Understandably, however, the best of speeches are reserved for Satan who, known as Lucifer before his fall and as “the prettiest of angels,” is harshly tossed from Heaven into burning Hell. He has hardly had time to recover from his great fall – it lasted nine days – and yet comes up with the immortal lines

57 I am referring to his political judgment for, as always, Milton also paints his other side – financial greed – most vividly in I. 679–83. 58 “Better to reign in Hell than serve in Hell” (I. 263). 59 II. 255. 60 Perhaps deliberately following Matthew 12, 24, where Beëlzebub is called “the prince of the devils”. 61 II. 299.

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“What though the field be lost? All is not lost: th’ unconquerable will62

And courage never to submit or yield And what is else not to be overcome?

In arms not worse, in foresight much advanced, We may with more successful hope resolve To wage by force or guile eternal war Irreconcilable to our grand Foe Who now triumphs and in th’excess of joy Sole reigning holds the tyranny of Heave’n.”63 This is impressive stuff; and learned commentators through the ages have wondered why Milton made Satan so heroic and, by comparison (as we shall see below) made his God so much less impressive. Perhaps he sensed this himself since, as the poem develops, Satan is demoted, indeed, degraded until at the end he and his followers are, in an Ovidian and dramatically recounted way, metamorphosed into serpents. Still, these are grand lines, describing an unconquerable spirit, speaking with such force and rhetorical power – think of the ending words with their poetic contradiction: “the tyranny of Heaven.” Along with the attributes of all the other devils64 one can hardly fail to get the impression that if moral fibre, piety, and goodness are missing in Hell, great talent does not come in short supply! And, further proof that this is so, comes from the fact that the poem shows that the fallen angels have managed to build a working city in an otherwise

62 I have deliberately skipped here the line which gives Satan’s base motives for, in my view, they need to be discussed separately and not allowed at this early stage to distract from the grandeur of the speech. 63 I. 105. 64 Again, Mammon himself admits to that when he states that “Nor want we skill or art from when to raise Magnificence;” II. 272.

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barren environment and have set up a political structure that is perfectly recognizable even in our times.

(b) The artist may even wish to make us prefer the “bad character” to the “good” Despite the volume and expertise of the literature that takes a different view, I personally feel this is what Mozart succeeds in doing in Don Giovanni. The earliest extant written version of the story of Don Juan and the Stone Guest, originally designed (and performed) for religious instruction, comes from the pen of Tirso de Molina. But, as the title suggests – El Burlador de Sevilla (The Playboy of Seville) – the “hero” is not yet quite the larger-than-life, self destructing individualist at constant war with society who is depicted in the opera (even though this draws largely65 on de Molina’s text). In that sense, the Don resembles Milton’s Satan: their characters thus represent the battle between individualistic versus social virtues or, if one prefers to put it in Miltonian (i.e., religious) terms, the drawbacks of rebellion over obedience. But, I think, the opera offers us more insights into the human nature, being replete with instants which ring true because, I think, they are so human and thus believable. Of course, at first blush, the religious moralistic demands and imagery finally win the day with the Don’s damnation. One commentator66 has even argued that Mozart, in re-asserting the belief in divine retribution, is taking a stand against the beliefs of the Enlightenment which rejected this notion. This divine intervention may, indeed, be foreshadowed by various musical and verbal devices early in the opera and may even explain why the moralizing 65 Though not entirely, for it is more than likely that da Ponte also consulted Molière’s Don Juan and, more so, Giovanni Bertati’s Don Giovanni Tenorio. Set to music by Giuseppe Gazzaniga. Accusations of plagiarism, however, have always struck me as unfair not only because large chunks of the libretto (roughly around the middle of the opera) are entirely new but, more importantly, because da Ponte’s version, whenever it differs from, say, that of Bertati, tends to be more humorous, in keeping with the proclaimed buffa elements of the opera. 66 Nicholas Till, Mozart and the Enlightenment (1992), pp. 197 ff.

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vocal sextet at the very end of the opera was, invariably, omitted in all earlier productions. For the idea behind this omission may have been the desire not to distract from the Don’s dramatic descent to Hell, replicating, in a sense Satan’s fall in Milton’s epic poem. Yet one may wonder whether Mozart and Da Ponte feel obliged (but not inclined) to damn (entirely) the Don even though this must have been the only conclusion one could possibly expect at the time. For, notwithstanding this end, I feel that Mozart and Da Ponte – like Milton – cannot conceal a certain degree of affection (if not admiration) for their villain / hero, even though they also bring out his lascivious and cruel character very brutally when the context seems to require this.67 For, stripped of all the moral or moralistic overtones, Don Giovanni is, at the end of the day, not a counterpart of Satan’s but a highly lascivious, probably unfulfilled, but nonetheless recognizable figure of 18th century Seville. Perhaps he also fits in our own permissive (or promiscuous?) society. Murder apart, I would (as a person with Mediterranean blood) thus treat too much moral indignation at his sexual exploits as unconvincing. I say this with some hesitation noting that the Miller Essays (written by “Northerners”) are quick (too quick?) to interpret the incessant nature of the “hero’s” sexual activities in psychological terms, even suggesting that in the end the Don voluntarily goes to his death as a way of freeing himself from his predicament.68 This is not Italian or Spanish behaviour and Da Ponte would have known it. So I still feel that Mozart and Da Ponte may have been closer to my way of looking at things and in the words and music of the opera one can find clues to buttress such an interpretation. For, how else can one explain the different treatment they reserve for one of the “goodies” – Don Ottavio? Both composer and libret-

67 The so called “Champagne” aria – “Fin ch’han dal vino” – offers an example since it is notable that of its five stanzas it is the fifth, which indicates why the Don is asking Leporello to go and get him women (i.e., so that he can seduce them), that is repeated over and over again. Yet not too much should be made of this point. For would a composer give some of his best lyrics to a rapist or unfaithful husband if he did not find redeeming features in the character? 68 See Peter Gray’s “The Father’s Revenge” in the Miller Essays, pp. 70 ff.

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tist seem to have little hesitation in making the “villain” (i.e., the Don) look the more interesting of the two while presenting the “goodie” as something of a spineless wimp. This kind of reasoning may explain why the composer not only gives Don Ottavio only one good aria to sing – Il mio Tesoro – but also, with the willing assistance of Da Ponte, makes him look so weak and lost from the very outset when he discovers that Donna Anna’s father – the Commendatore – has been assassinated. For does he give chase? The text does not make it clear if it is technically possible or whether the assassin has already disappeared into the night – but either way the answer is “no.” Does he at least organize a group to give chase? “No,” again. Does he rush to embrace his fiancée in her moment of despair and grief and cradle her in his arms? “No”, yet again, contenting himself to ask the nearby servants to “bring some scent, bring some spirits” only to repeat two lines further down to “give her more assistance” while he is just “flapping around.” That part of the scene ends with a duet proclaiming the parties’ determination to get revenge; and, characteristically, the music and the words at this point become more powerful and more sinister. It somehow does not take much to convince oneself that Donna Anna is the one who, so to speak, is wearing the trousers, a point which I think is brought out clearly at a later stage in her dramatic aria “Or sai chi l’onor,” sung just after she has recognized in the Don the killer of her father. But matters cannot be allowed to rest there. For Mozart and the much maligned Da Ponte also display the characteristics of all great artistic creators by giving us enough clues – in the libretto and the music – to adopt a contrary interpretation if we wish and thus characterize differently a character in the play (or, in this case, opera).69 The Chief Music critic of the Sunday Times and the Spectator has thus pointed out that70

69 Leporello, whose name means “little hare,” is thus one of the few who is consistently portrayed as an indecisive man. In Aristotelian terms he is born to be a servant (doulos) not a free man; and he admits this himself in his opening aria. The juxtaposition of radically different character makes the contrast with the Don greater, to the latter’s advantage. 70 David Cairns, Mozart and His Operas (2006), pp. 155–56.

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“Mozart didn’t lavish the strange, luminous modulation to which Ottavio and Anna enter the courtyard in the sextet, nor Ottavio’s grand heroic phrases, punctuated by quiet but momentous trumpets and drums, on a character he expected us to snigger at. The last of Ottavio’s wide spans of melody begins with two bars that are identical to the opening six notes of the overture’s molto allegro theme. The man is no ninny”. So Ottavio may be stronger than we think and Donna Anna weaker than she appears to be at first sight. For, notwithstanding her formidable display of strength at the beginning of the Opera, in the end she is presented as a broken woman. These ups and downs in characterization may thus indicate more than may be obvious at first sight. For, though justice is finally done in the end by the damnation of the “villain”, the goodies do not seem to live “happily ever after.”71 Maybe the psychologists would tell us that this is only to be expected for they have been scarred for life by the tragic events in the opening scene. The whole opera is thus, in one sense at least, a tribute to the magnetic force of one man, a force which spreads chaos around him but also generates interminable intellectual debates to our times. There is some value to all this; and it goes beyond pure entertainment since it provokes discussion, debate, exchange of ideas, intellectual stimulation. See in this way, his personal underlying immorality becomes a secondary issue. Equally, however, the whole opera, with all its ups and downs, could be Mozart’s way of saying that happiness is not easily attained in this world so one should seize the pleasurable moment in life while one can. This “sad” ending for Donna Anna is not unimportant for, during the time scale of the opera, she is the only woman who is the victim of physical violence (attempted rape).72 This last 71 The point is made powerfully and in detail by David Cairns, Mozart and His Operas (2006), p. 164. 72 Whether she was actually raped or not by Don Giovanni is unclear from the text, some commentators (such as Alfred Einstein in his Mozart: His Character, his Work (Engl. translation, by Arthur Mendel and Nathan Broder, 1946)

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point about rape is important for it may suggest that the Don’s amorous conquests, memorably list by his servant, may be the result of charm or deceit or both but not physical violence. If this suggestion could be substantiated – and I do not think we have the evidence from within the play, it puts the Don’s activities in a different category, both morally and in legal terms and would not, in my view, justify the final harsh sentence.73 This point seems to assume some support from reading and listening to the scene when the Don first meets Zerlina. To be sure, the wording suggests deceit but the confidence of the seducer could also make this a “borderline” case. No doubt, the Don is about to complete an act which in those days we know could result in the complete ruination of the seduced peasant girl. Marriage, after the seduction, would be almost impossible. The Convent might provide a refuge in which to spend the rest of one’s life in repentance but what a dreary end for a young girl whose only sin is her giving in to nature. Alternatively drowning in the river Seine would have been another much favoured option as contemporary records suggest. In short, the “donna abandonata” was, in those days, a doomed figure.74 Yet there is little hint in the seduction duet “Là ci darem la mano” that Zerlina is not aware of the risk of ending up abandoned. And the sublimity of the music second, in my view, only to Count Almaviva’s “Pardono” aria at the end of the Marriage of Figaro (and the accompanying and beautifully timed granting of it by the Contessa), can never convince me that Mozart was, at that moment at least, treating the scene as a damnable seduction and not as a moment of human fulfillment. At best, therefore, I think he saw in his main character someone with virtues and arguing that she has, while others taking a different view. As far as the play is concerned, Donna Elvira may also fall into this (ambiguous) category for, while courted and repeatedly humiliated in the play, any sexual violence against her seems to have preceded the events portrayed in the opera. 73 Unless it is seen as a fitting one for the death of the Commendatore. Yet this, too, could depend on the technicalities of the rules of dueling applicable at that time. 74 On which see Lawrence Lipking’s interesting piece “Donna Abbandonata” in the Miller Essays, pp. 36 ff.

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vices, unfulfilled, restless, courageous – in short full of contradictory human qualities, but human all the same. So, to return to Zerlina’s exchanges with the Don, one must note that, unlike his encounter with Donna Anna in the opening scene of the Opera, this scene is developing into one of consensual sex. Indeed, Zerlina is not only responding to the Don’s charm, but is the one who utters, towards the end of this scene, the words “Presto (…) non son più forte.”75 So, technically speaking, she “consents” to the sexual act that is meant to follow, the words “vorei et non vorei” surely externalizing the ambivalence of the young virgin76 as she struggles between caution and gratification of her sexual desire. Further textual support for such an interpretation can, I think, be drawn from Zerlina’s later song “Bati, batti, o bel Masetto” where she reveals herself to be, despite her young age, an artful woman able to run circles around her “macho” but naïve lover for the sake of having her way. The doubt, if one was ever there, is resolved by the Don ending the scene with the beautiful duettino “Andiam, andiam, mio bene.” And, again, in its beautiful choice of words – let us “calm the pains of an innocent love” – it reveals a complete understanding of human nature. Yet this prolonged sub-scene, starting with “Là ci darem la manno” and ending with the duettino “Andiam,” which drove composers (such as Chopin and Gounod) to open declarations of admiration, have led some musicologists to argue that in this song77 “Giovanni issues the melody’s adornments, extensions, diversions and so on. In fact, Zerlina makes the piece her own.” i.e., in other words that even musically he is not given the “lead role.” 75 Quick, then, I can resist no longer (end of act 1, scene 9). 76 “Vorei et non vorei… / Mi trema un poco il or… / Felice, è ver, sarei… / ma può burlami ancor…” This human hesitancy is met with the equally clever closing words of the Don: Andiam, andiam, mio bene, / a ristorar le pene / d’un innocente amor!” 77 Joseph Kerman, “Reading Don Giovanni”, in The Miller Essays, 108, at 123.

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If such musical analyses are meant to support the wider views of moralists that Don Giovanni, as a whole, is a “vacuous”, “characterless,”78 musically “uninventive,” (and, of course, amoral) character (and I think they are), then, as a layman, I must disagree. For the so-called “Champagne” aria shows him to be vivacious; the “Là ci darem la mano” aria makes him convincingly seductive (leaving the lady to hurry him on); and the second-act aria “Metà di voi quà vadano” is wonderfully artful. It is thus difficult not to conclude with a view that many (most?) people hold namely, that this is a marvelous, human, and on occasion amusing opera, and leave it to musical and literary critics to “tear it apart.” But then “Why should those who cannot create take upon themselves to estimate the value of creative work?” Oscar Wilde is among those who have posed this pertinent question; and he answered it with his usual predilection for paradox and originality in his Essay The Critic as Artist.79 Perhaps, the best answer – at any rate the one with which is most appropriate to our work – is that once offered by George Orwell80 namely, that “Ultimately there is no test of literary merit except survival, which is itself merely an index to majority opinion.”81 The “consumers” of art – readers. viewers, etc – may thus, at the end of the day be perfectly entitled to disagree with professional critics and offer their own interpretation of the works of art to which they are exposed. All of which make it perfectly legitimate to suggest that Mozart and da Ponte, the latter being himself a refugee from his own country of origin because of sexual misdemeanors, perfectly understood the human (feminine) nature and were thus able to capture the human predicament and even give it poetic beauty, I do not know what will. In the end, therefore, calling da Ponte’s libretto “cobbled up” is neither

78 Bernard Williams, “Don Juan as an idea”, in Julian Rushton (ed.), Don Giovanni, Cambridge Opera Handbook (1981), pp. 81–91. 79 Op. cit., pp. 1009, 1011. 80 “Lear, Tolstoy, and the Fool”, Essays. Penguin ed. (1970), pp. 401, 404. 81 I have italicized “majority opinion” in order to point out that Orwell is not referring to volume of sales but reputation.

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new nor an inaccurate accusation (notwithstanding the fact that it also contains some very fine lines in some of the songs). Nor has calling the entire opera “problematic” or “deeply troubling” affected the enduring appeal of its music nor weakened the argument that Mozart’s music often makes us forget (or, at least, suspend temporarily) judgment on the underlying immorality of the story. To put it differently, to be exposed to one of his works should not entail a search for his own moral ideas or positions, not least because like most creators of great art he deliberately embodied in his work many positions, views and opinions of what is good and bad. To fasten on one would, it seems to me, impoverish his work, especially in the eyes of future generations. The above is not weakened by the fact that, the Don, in the end, has to pay for his crimes and sins. For, though composed at a time of decreasing religious belief, the prevailing “official” morality in the Austrian Empire of the period could not sanction any other outcome. Mozart had had enough difficulties with the censors anyway, both with this opera and Le Nozze di Figaro, and they were recent enough82 for him not to wish to have another open confrontation. So damned he must be though, once again, the hero / villain is not going to be allowed to disappear without displaying formidable courage when confronted by the ghost of the Commendatore, a courage made more striking by being contrasted to Leporello’s scared buffa type of behaviour, often depicted on the scene by him hiding under the Don’s dining table, while the infernal ghost knocks for admittance. So, personally, and consistent with my “heretical” interpretations, I do not think we have to read too much into the final damnation. Religion and the mores of the time83 combined 82 The Marriage of Figaro was first performed in the Burgtheater in Vienna on 1 May 1786; the Prague première of Don Giovanni was, as stated, on 29 October 1787. 83 Indications that throughout history considerations such as this forced the artist to insert a “suitable” ending exist aplenty. For instance, Mikhail Yuryevich Lermontov was, apparently, persuaded to add such an ending to his poem The Demon when its first reading (1841) was scheduled to take place before the Crown Prince. See the introduction of Daniel Ward in The Library of Russian Classics edition (1964), vii.

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could not have possibly allowed an ending with the Don living happily ever after. But, equally, we cannot forget that during his short life, he tasted it to the full, and dominated all around him, even those whom he had previously deceived (like Donna Elvira who, though already once seduced and having powerfully expressed her anger in the “Ah, fuggi il traditor” aria – in my opinion the musical equivalent to the “Hell hath no fury like a woman scorned”84 – is, nonetheless, ready to give him another chance). What is the use of calling his character “troubling” or “dark” when clearly he is also irresistible? For the reasons given in sub-section (a), above, as well as in the next sub-section (c), the same may be arguable for Satan in Paradise Lost.

(c) Motives recognized /shared by humans Could the admirable features of the “bad” in these two very different forms of art already discussed be due to the fact that because of them and because the motives attributed to them are so human we – the readers and listeners – can identify with them and even envy those who have them? And what are these base motives? Pride, vengeance, ambition, vanity, love, which really become condemnable only if they are transmuted into lust or otherwise taken to extremes? I state throughout this book my own predilection for the pagan gods capable of love and vengeance, acts of grandeur as well as pettiness and deceit, ferocious anger as well as forgiveness, if for no other reason, because I can understand the imperfect but have no way of conceiving of the perfect. Pascal once implied in his Pensées that he can understand de Montaigne because he makes him understand himself.85 I feel the same in this case, admitting the arguable weakness of such a human reaction; but I do not stand alone. 84 The Taming of the Schrew, Act iv, Scene 1. 85 “Ce n’est pas dans Montaigne mais dans moi que je trouve tout ce que j’y vois.” Fragment 583.

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Professor C. S. Lewis, a devoted Anglican with a beautiful pen nowadays better remembered for his “The Chronicles of Narnia,” thus expressed a variant of this feeling better than I can ever hope to do, even though his surrounding texts (and underlying ideas) are too religious for me to feel comfortable with. He thus wrote:86 “It remains, of course, true that Satan is the best drawn of Milton’s characters. The reason is not hard to find. (…) In all but a few writers the “good” characters are the least successful. (…) To make a character worse than oneself it is only necessary to release imaginatively from control some of the bad passions which, in real life, are always straining at the leash. (…) But if you try to draw a character better than yourself, all you can do is to take the best moments you have had and to imagine them prolonged and more consistently embodied in action. But the real high virtues which we do not possess at all, we cannot depict except in a purely external fashion. We do not really know what it feels like to be a man much better than ourselves. His whole inner landscape is one we have not seen, and when we guess it we blunder.” As stated, whether this explanation is right or wrong, it rings true for me. So, in the end, I fully understand Baudelaire when saying that Milton transmits to us a Satan hardened by his resolute vengefulness yet also softened by his deep unhappiness; and these combined qualities make him “the most perfect type of virile beauty.”87 Since eminent Romantics of the 19th century, such as Shelley and Blake, took a similar view, it must be at the very least tenable. Artistically, it is most attractive. Moreover, the virility given to Satan, imbued with courage and resolve, remain human qualities, not just heroic ones. For, in a truly fascinating and revealing three lines – perhaps the poem’s most moving – we are told how the fallen commander is so touched by

86 A Preface to Paradise Lost (OUP 1942). 87 Armand Himmy, John Milton (Paris 2003), pp. 480–81.

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the plight of his defeated companions that he breaks down in tears as he is getting ready to address them and cheer them up: “Thrice he assayed [to speak] and thrice, in spite of scorn, Tears such as angels weep burst forth.”88 Again, I find it difficult to believe that, in these lines, Milton is not concealing a certain sympathy for Satan (as William Blake most famously asserted) for why talk of “tears such as angels weep” when referring to the Fallen One? Clearly, he thinks that the Fallen One still retains some of his old attributes. The only alternative explanation I can think of89 for such “compliments” is the need to stress Satan’s “strong” points solely for dramatic purposes so that they can later be contrasted to his vices and give the poem greater drama, perhaps even make this the drama that talks about two falls not one: that of Adam as well as that of Satan.

(d) Are the human motives ascribed to evil so universally reprehensible? In Milton’s Paradise Lost Satan himself tells us that it was ambition not altruism that led him to revolt. He thus admits that “Nor was His service hard: What could be less than to afford Him praise, The easiest recompense, and pay Him thanks? How due! Yet all His good proved ill in me And wrought but malice. Lifted up so high. I’ sdained subjection and thought one step higher Would set me high’est and in a moment quit The debt immense of endless gratitude.”90 88 I. 619–20. 89 Though see Professor Stanley Fish’s interpretation in Surprised by Sin: The Reader in Paradise Lost, second edition, with a new preface (1997), about which more, below. 90 IV. 45. My italics intend to suggest the idea of promotion.

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This admission has enabled some critics91 to distinguish Satan from Prometheus, the later paying for his desire to spread knowledge, the former being moved by ambition.92 Others have seen in these lines a sign of ingratitude. I wonder if these texts can now be subjected to a more contemporary interpretation? Thus, first, is it not Satan’s fate in Heaven to render ceaseless thanks and praise to the Master?93 Gabriel, in fact, derides him for “fawning” such behaviour himself while still in Heaven by telling him that94 “Who more than thou Once fawned, and cringed, and servilely adored Heaven’s awful monarch.” Now all this bowing, cringing, and genuflecting – is it not boring, indeed, unacceptable to any creature of talent and ability? And does not Gabriel’s “jab,” meant to reveal Satan as a humbug, really reflect the spirit of the place and, perhaps, reveal Satan as doing better than all his colleagues were expected to do?95 Worse still, is there not also evidence to suggest that such supreme flattery could buy then (as it can buy now) various benefits, including absolution from the most heinous of crimes?96

91 For instance, Balachandra Rajan, Paradise Lost and the Seventeenth-Century Reader (Chatto and Windus 1947), pp. 95 ff. 92 This idea is, of course, reinforced by the line I omitted when citing the “lost battle” speech for I did not wish to distract from its grandiose tone. The missing line, of course, reads: “And study of revenge, immortal hate.” I. 107. Yet, I think, vengeance comes later, i.e., after the Fall and in the beginning what we have is restlessness arising from the feeling that he has not had the recognition due to his talents. 93 IV. 46. 94 IV. 958–60. 95 It would be interesting to count with the aid of a computer how many times the words “bowing,” “cringing,” and “genuflecting” appear in this poem for even God, when introducing him in Heaven, states that he, himself, has “sworn to him shall bow /All knees in heaven…” V. 607–08. 96 It is, indeed, tempting to ask whether the constant rendering of praise may even suffice to erase (and more) the most awful sins. Thus, The Acts of the Apostles tell us – 13. 22 – that David, the psalmist, was not only forgiven as

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Yet not all commentators have seen things in this light. Professor C. S. Lewis, for instance, has devoted some beautiful passages in his essay on Satan,97 condemning his egotism which stems from his “sense of injur’d merit”98 which makes him think “himself impaired” and thus leads him to rebellion.99 Yet, is not the announcement of the appointment of the Son as vicegerent made without warning and consultation?100 And did not Milton, himself, express dislike, not that different from that expressed by Satan,101 for such a way of proceeding when in The Reason of Church Government he wrote “In the publishing of lawes (…) to set them barely forth to the people without reason or Preface like a physicall prescript (…) in the judgment of Plato was thought to be done neither generously nor wisely”?102 Abdiel, to be sure, is given some good lines explaining why, in theological terms, God had a right to act the way he did. Yet in today’s thinking, the disapproval of such a way of proceeding would be condemned more strongly than, apparently, it was by Plato; and in legal terms it would run the serious risk of being challenged for lack of transparency. So, firstly, given the above, is not Satan’s action understandable?103 Is this not an example of a point made in several parts of an ex-murderer and an adulterer, but that he was seen as “a man after [his i.e. the Lord’s] own heart.” I am not aware how religious writers have defended this wording, but to a lawyer it sounds un-necessarily broad. 97 A Preface to Paradise Lost (1961), chap. 13. 98 I. 98. 99 V. 662. 100 V. 603–611. The term appears again in X. 55–62 where judicial power is delegated to the Son. 101 V. 5772–777. 102 Cited by Mary Ann Radzinowicz, “The Politics of Paradise Lost” in Kevin Sharpe and Steven N. Zwicker (eds), Politics of Discourse: The Literature and History of Seventeenth-Century England (1987), pp. 204, 221. 103 Professor Stanley Fish (and others), however, in Surprised by Sin: The Reader in Paradise Lost, second edition (1997), pp. XXIX ff. finds that asking the question “why does Satan think himself into a state of impairment?” to be

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this essay that what was once regarded as “bad” or “wrong” may, with the passage of time, mutate into being, if not approved, at least understood? What Satan did is what one would expect any restless and ambitious intellect would do, whatever religion, morality, or good manners may require. To be sure, this restless quest, this unending ambition, may lead the restless spirit, when working things out in its own mind, to get things badly wrong. Satan obviously did. Yet does not William Blake echo a truth when he tells us that “You never know what is enough unless you know what is more than enough”?104 And was it not another great poet,105 not always in accord with either Milton’s or Blake’s views, who echoed the same kind of ideas when he wrote: “of course we can ‘go too far’ and except in directions in which we can go too far there is no interest in going at all; and only those who will risk going too far can possibly find out how far one can go.” Secondly, the key passage cited in the text above shows, to me at least, more than Satan’s ambition, justified or not. It also reveals a supreme self-satisfaction and egocentrism on the part of the “boss” who demands obedience (and constant genuflecting) from his talented lieutenants.106 Indeed, is this not just evidence of self- centeredness in an extreme form but, more importantly, also a sign of bad management techniques? For the modern reader can evaluate this enforced atmosphere of servility and feel free to condemn it without running the risk of being accused of reaching such a conclusion by misinterpreting the text “tautological and unhelpful.” I would respectfully submit that to a contemporary reader, not feeling bound by religious thinking, the reason is obvious and, indeed, is hinted by Satan himself. I elaborate this modern interpretation in the text. 104 “The Marriage of Heaven and Hell”, reproduced in Mary Lynn Johnson and John E. Grant (eds), Blake’s Poetry and Designs (W. N. Norton & Company 1979), p. 90. 105 T. S. Eliot. 106 Beautifully illustrated in V. 588–591 where they are described as arriving to hear God’s announcement of the appointment of the Son as Vicegerent.

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because he does not fully understand Milton’s theology. Forget about Milton’s theology. Words change, behaviour can be differently assessed, and the meaning of bad may thus be attenuated and even disappear. This is definitely not orthodox interpretation; but to the extent that it appeals to a contemporary reader, it puts the genesis of the rebellion on an entirely different footing. Disagreeing with the Lewis kind of reasoning cannot stop there. For, thirdly, and going beyond this particular work of art, should ambition to improve one’s lot, to rise, to learn, to earn more, to be given greater credit for talent and achievement, be so derided? Those living in the 21st century should not forget the successful modern businessman, whose insatiable ambition can make him the source not only of envy but also of wider wealth for society as a whole. For, coupled together, are not curiosity and restlessness the causes of all creation, invention, innovation, and improvement? If Satan’s ambition is to be seen as a vice, it must be seen as having as its sole purpose his own aggrandizement and, indeed, throughout the poem his own position and ego figure centrally in almost all his soliloquies.107 Here, perhaps, is where the fault should be pinned and not on the idea of ambition in itself for, otherwise, the text will never be able to accommodate itself with contemporary thinking. But this is not something that the 20th or 21st century can only understand. For how to rate ambition has troubled earlier centuries as well. If ambition can count as a minus – for some a big minus – in a character, it is a minus that Milton had, himself, in the extreme. One could, indeed, suggest – one may almost be compelled to accept – that it was this toughness, the unwillingness to give up and to remain, like the seraph Abdiel, “Unmoved, unshaken, unseduced, unterrified”108 that enabled him to keep 107 Yet it is, perhaps, a sign of Milton’s genius that he never gives us enough material to form a definitive opinion about a subject matter without then also giving us opposing evidence to make us think and doubt. The famous soliloquy on Mount Nimphates – IV. 32–113 – is an example of how Satan’s psychological depths and contradictory moods are shown, revealing him again as a human not as an angel and thus more interesting for us to study even if we do not like him. 108 V. 896.

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going in the face of political and physical adversity encountered at the end of his life while he was completing his masterpiece. If these, then, were the poet’s own attributes, would he have given them to a character he wished to condemn totally? Indeed, this ambition and self-consciousness are not just attributes found in Milton’s “creation” but also his own character as revealed from his earlier days when he began slowly fashioning the role of poet / prophet for himself. They are also human, recognizable attributes which, as I have suggested, form (and have always formed) the basis of all activity – high and low – of artistic, political, and economic life. So, if examples taken from the business world may appear unattractive to some, think of art. Thus, was not Michelangelo’s life as real and as Faustian or Satanesque in its amplitude and extremes as he struggled to achieve perfection?109 Could a Leonardo da Vinci, a Brunelleschi, a Wagner, a Justinian, a Napoleon, ever feel content with what they had done and willing to retire to a quiet life? Or, if we switch to law, is this what Oliver Wendell Holmes chose to do when he reached seventy, eighty, or even ninety? Where does my list end? I think it is endless as far as “great” men are concerned. For they rarely retire voluntarily since they rarely feel their work has come to an end. If this makes them unattractive and unlovable, as I think Professor Alschuler had the courage to show in his “debunking” monograph on Holmes,110 it is because usually they are and this, in turn, flows from their maniacal desire to create coupled with a degree of self confidence which could, alternatively, be described as extra-ordinary or pathological. Judge Posner was right when he said, referring to Cardozo as an exception, that “high achievers tend not to be

109 See, inter alia, the comments of the late E. H. Gombrich, The Story of Art (11th ed. 1966, reprinted 1967) at p. 228: “The poems he wrote show that he was troubled by doubts as to whether his art had been sinful, while his letters make it clear that the higher he rose in the esteem of the world, the more bitter he became”. 110 Albert Alschuler, Law Without Values. The Life, Work, and Legacy of Justice Holmes (2000), pp. 10, 11 and, especially, chapter three and, to some extent, four.

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likeable.”111 But likeable or not, that is how they differ from the rest of us as they constantly transgress accepted frontiers making it possible for the likes of Blake to assert that: “What is now proved was once only imagin’d.”112 Faust was ambitious but his ambition took the form of constant restlessness. His thirst was not for money, political power, nor, even, joy.113 That is how he differs from Don Giovanni or Milton’s Satan. His restlessness is fed by his search for knowledge and understanding. He thus sells his soul and, in the process of being tempted by Mephistopheles, he stoops as low as he ever gets when deceiving Margarete. But he still fails to be satisfied and his unfulfilled search for knowledge does not know where to stop. The famous soliloquy in his study early on in the play tells us how he has shifted from law, philosophy, theology, and medicine; he later moves to alchemy and even toys with the idea of suicide but never manages to understand what makes the world tick. And that, for me, is a big difference between Goethe’s Faust and any contemporary transposition we might be tempted to attempt of his character. For now the contemporary Faust – as recent theatrical productions have tried to suggest – would be selling his soul for money or for power, not for knowledge. Anyone who would attempt such a change would be betraying Goethe’s (and Faust’s) personal character. I suspect my failure to condemn ambition would not meet with the approval of moralists or theologians, who would find in the notion base and selfish motives and, on the strength of such an evaluation, condemn it and the person who possessed it. Yet like Blake (among others) I do object to Christian or any other institutional moral movement trying to restrain the forces of energy, imagination, and the willingness to think differently.114 Nor 111 Cardozo: A Study in Reputation (1990), p. 130. 112 Op. cit., note 65, above, at p. 89. 113 As he, himself, tells us in the scene in his study, III. 114 For further details on this aspect see Sigmund Freud, Die Zukunft einer Illusion (vol. IX).

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do I think it is possible to encourage ambition and the desire to improve in young people and, at the same time, tell them that, externally, you must appear not to possess this drive. Look at someone totally devoid of ambition, drive, and energy and ask the question whether such persons can ever act as icons or models for others? But let us not leave this question hanging in the air without a specific illustration taken again from the range of works considered in this book. Has anyone described better such a creature than Ivan Aleksandrovich Goncharov in his classic novel Oblomov? For the delicate, likeable, and tender eponymous hero Ilya Ilyich Oblomov represents the complete anti-Faustian115 image of someone condemned to spend his life in his dressing gown – the Russians have even created a word after him, khalatnos’t, to signify someone living in his dressing gown who is thus truly “superfluous”116 (in the Russian term, to be discussed below in Chapter VII), if not a useless member of society. The contrast between these two creations of literature – Faust and Oblomov – thus reflect nothing more nor less than the eternal struggle between – as Goethe put it – Sein (being) and Werden (becoming) and which may overlap with differing ideas of “good” and “bad” but, essentially, stand the first for a life of passivity – contemplation might help exalt this status more – and a life of action or utilitarian 115 On this see Milton A. Mays, “Oblomov as Anti-Faust,” Western Humanities Review, 21 (Spring 1967). 116 The famous Russian critic Nikolai Aleksandrovich Dobroliubov was the first to see Oblomov’s character in this light and this view has prevailed since. See, however, Yvette Louria and Morton I Seiden, “Ivan Goncharov’s Oblomov: The Anti-Faust as Christian hero,” Canadian Slavic Studies, 3 (Spring 1969) where a careful analysis of the novel, coupled with the fact that Goncharov was a committed conservative (senior) censorship committee member of his time, lead them to see a thoroughly Christian soul, in direct opposition to Goethe’s Faust, who has the misfortune of finding himself to be out of tune with his times. But as I explain further down this is one of the features of all the superfluous men except that some (like Oblomov) cannot move with his times whereas others (like Turgenev’s Bazarov) are ahead. Thus, for me, the interest of the Louria / Seiden study lies mainly in the authors ability to see “good” and “bad” in the characters and, indeed, the names of all the characters of the novel. On this see the analysis at pp. 58 ff.

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service – which is the final task undertaken by Faust in Part II of the drama. Personally, I prefer the second option and find many of the 19th century critiques of Goethe’s Faust as somewhat simplistic denunciations of 19th century empirical philosophy under the heavy hand of Christian beliefs. At the end of the day, therefore, what matters is not the opinion of one author but the realization that (a) we can find these different depictions of good or evil in literature, (b) that they reflect the beliefs and personal outlooks of their creators, and (c) illustrate the shaded and nuanced tones of our central notions of good and bad. We see this not only in the various great “characters” of literature; we also see it in the ways commentators and critics have chosen to explain the complex features of these “characters.” The Louria/Seiden article referred to above thus offers us a superb example of how the “sins” visited on the literary characters can be “explained away” by a commentator trying to make a point. Oblomov thus finally dies from over-eating, his wife Agafia having turned out to be a good cook. To most inclined to give this a technical term, the word gluttony might spring to mind. This, however, is a “sin;” and since the authors wish to portray Oblomov as “saintly” they come up with the following “mitigation” proving, I think, my point namely that if one wants to, one can always “shade” bad and make it more acceptable, or “tune down good” and make it more ambiguous. This the authors argue: 117 “According to the Christian tradition, gluttony is only a venial sin insofar as it is an undue indulgence in a thing which is in itself neither good nor bad.” But if that kind of reasoning is permissible, is lust also a venial sin, representing, one could argue, an extension of ordinary desire or love, or greed being an excess of the very normal human desire to make a gain or profit? Going down this path, I think, confirms my belief that in most cases good and bad can be made 117 Ibid. at p. 56, drawing on Morton W. Bloomfield, The Seven Deadly Sins: An Introduction to the History of a Religious Concept, with Special Reference to Medieval English literature (1952).

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to shade into one another; but could also be seen as combining religious and legal ingenuity to an extent that may not be attractive to the ordinary man in the street. The conclusion may thus lie in the idea that all things – good or bad – if taken to excess are “bad.” In my view what makes ambition and the desire to rise and improve oneself questionable – in some cases perhaps condemnable – is not their existence but the attempt to satisfy these urges in the extreme and at all costs. To put it differently, it is taking these motives and attributes to extremes, never attempting to moderate them through the judicious consideration of countervailing factors, losing in other words the sense of all proportion, that turns them into wrongs or sins and, in appropriate circumstances, makes them damnable. In Faust, Goethe is fully conscious of this distinction and brings it out in many parts of his poem. That is why in the bulk of cases incessant drive and activity leads to self-destruction and only occasionally, very occasionally, do they triumph in producing a Michelangelo. And that is why the ancient Greek exhortation to pursue the Golden Mean is so wise for all but the truly extraordinary who must be encouraged to push their talents to their limits!

(e) Why does the anthropomorphic conception of “God” invariably appear so haughty, remote and cold? Why should God – especially, perhaps, the God of the Old Testament (and Milton’s118) – be all mind, no flesh, no feeling, and thus so remote from us, making it difficult to like Him, forcing us only to revere Him? In His first major speech in Book III119 118 At least in his Paradise Lost for in his divorce tracts, especially in the second edition of 1644 of Doctrine and Discipline, he portrays God as a rational God, different from the more arbitrary and inscrutable Calvinist deity. All this seems to me part of the overall strategy to reinterpret Christ’s words from Matthew 19: 3–9, which appears to exclude divorce except for “fornication,” and liberalize the availability of the institution. The Miltonian reader will, of course, need no reminding of the fact that Milton’s favouring of divorce largely sprang from his own, unfortunate, first marriage to Mary Powell. 119 56–134 leaves us with this impression.

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He, himself, makes himself remote if not vindictive when, in the Ten Commandments, He tells us that He is a “jealous” God who will visit punishment on those who disobey Him “and their children’s children.” This is not making punishment survive the death of the offender; it is making it inheritable for two generations and turns it into something akin to vengeance. Unlike the pagan gods of ancient Greece, He is also not made in the image of man but, on the contrary, made man after His own image. Could it be that this state of affairs was so unattainable for man that from his creation man is thus doomed to failure? This is, indeed, suggested by the texts of the Old Testament, though Milton’s version goes to great lengths120 to digress from Calvinist predestination and remind us that God also gave man a free will which, in theory, makes him able to resist the temptations of Satan. Yet God, being omniscient, must also know that choosing such a high standard for His creation means that it is bound to fail in practice and so it does. I am no theologian or moral philosopher even to begin answering these questions, but I do note two things in passing. First one must note that many a learned commentator of Milton’s work has also pointed out the “inadequacy” of his God compared to his Satan. Professor C. S. Lewis was willing to admit that Milton’s presentation of God is unsatisfactory, going as far as to suggest that he described God “imprudently.”121 Others, while implicitly accepting this, have argued that Milton is “struggling to make his God appear less wicked than the traditional Christian one” who is “very wicked” on the whole.122 Blachandra Rajan went somewhat further by stating that: “Milton’s God is what his Satan never123 is, a collection of abstract properties, or, in His greatest moments, a treatise of free will. The Son moves us more deeply, particularly in the 120 Thus, from the outset Milton tells us that his aim was to “justify the ways of God to men”: I. 26. 121 A Preface to Paradise Lost (1942), p. 93. 122 William Empson, Milton’s God (1961). 123 E. g., in his discussion with the Son in Book Four.

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quiet, firm monosyllables in which He announces His sacrifice. But the spare precision of the language Milton gives Him is lit only seldom by the ardour which should inform it. Clothed in the language of Ezekiel’s vision His triumph over Satan must have its moments of majesty, but it remains a moral rather than poetic victory.” Blake124 and Shelley125 perhaps went further than others by suggesting that the reason why the poem is so good is because it makes God so bad. Indeed, a few of Shelley’s words seem to me worth repeating for they tie in well with my own two reactions, namely, first, that Milton’s Satan could never “have been intended for the popular personification of evil” and, secondly, in painting his figure of Satan “He mingled as it were the elements of human nature, as colours upon a single palette, and arranged them into the composition of his great picture according to the laws of epic truth.” Thus Shelley, a man who “personally and poetically (…) thrived on conflict and dissent,”126 argues that “Milton’s Devil as a moral being is as far superior to his God as one who perseveres in some purpose which he has conceived to be excellent in spite of adversity and torture, is to one who in the cold security of undoubted triumph inflicts the most horrible revenge upon His enemy – not from any mistaken notion of inducing him to repent of a perseverance in enmity, but with the alleged design of exasperating him to deserve new tortures.”127

124 The Marriage of Heaven and Hell (1790–93), especially the Proverbs of Hell. 125 A Defense of Poetry (1821). 126 Percy Bysshe Shelley, The Major Works, from the Introduction of the Oxford World’s Classics by Zachary Leader and Michael O’ Neill, p. xii. 127 Taken from A Defence of Poetry (reprint), ibid. pp. 674, 692.

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The literature on Paradise Lost is thus not only very extensive but, so far as any objective observer can judge, almost uniformly less favourable to the depiction of God than Satan. The defenders have thus been forced to logical arguments to make up for the poetic, rhetorical, and emotional lack of appeal. Professor Fish, in his learned monograph Surprised by Sin: The Reader in Paradise Lost devotes an entire chapter defending Him. But why defend something that is perfect? And how does one carry out such a thankless task to a successful conclusion? It would be crass to summarize the Professor’s arguments, tightly presented in the thirty-four pages of his second chapter. But one strikes me as ingenious of not ingenuous and that is where it is claimed that the reader of the poem “can only feel (…) uneasiness at having surrendered even momentarily to their [the devils] eloquence.”128 I have two difficulties with this argument. The first is that he seems to admit that thus far, i.e. after the first two books, the devils in general and Satan in particular have, on the whole, come out pretty well. Does this mean that Milton started with a different view and changed as the book progressed? Does it mean that Professor Fish, who welcomes and admires the “authorial interventions” in which Milton purports to undo the compliments he has paid to the individual devils as he has introduced them one by one in Book II, have been ineffectual? Or is this “admission” part and parcel of the Professor’s attempts to use the narrative to expose the readers to the same temptations and prove to them that they, too, have failed and must now try to reform themselves?129 One can speculate about these questions in search of an explanation; but when surveying 128 Fish, op. cit. p. 70. 129 The use of the word “momentarily” would support this while also fitting in well with the Professor’s main thesis. But “momentarily” may have greater significance than that. For it explains why religious dogma and writings adopts such rigid, black-and-white terminology since it is anxious to ensure that its flock does not stray from established dogma even “momentarily.” Incidentally, if this last statement is true, “provoking the reader’s wayward fallen responses” in order to have them subsequently corrected and give him the chance to rehabilitate himself must entail serious dangers of losing permanently the lapsed believer.

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the vast Miltonian literature, there is little room to doubt that “the reader” – most of them at any rate over the centuries – have “surrendered” not only “momentarily” to Satan’s eloquence since he has been and remains an “inescapable object of attention,” “admiration” and “persistent fascination”.130 Secondly, there is as another fact that must be taken into account. For it is not only God that does not emerge too well from this account – neither do his loyal angels. On this, learned opinion may be more divided, at any rate more supportive of the portrayal of the angels. Thus, consider the praise Professor Barbara K. Lewalski heaps on the angels in her marvelous and most recent biography of the poet. For she tells us131 how admirable they are, entrusted with the task of educating Adam and Eve (Raphael before and Michael after the Fall); guarding the Garden of Eden; fighting courageously Satan and his group of rebel angels. These statements are not just meant to show how much Milton valued this “supporting cast” but, indirectly, prove Satan’s claim that he led an idle life in the “good old days” before his Fall. Yet is the true picture as rosy as it is depicted to be? With due respect to Professor Lewalski’s great learning, did the education given to our First Parents help them observe God’s most important command? (Or are we back to the idea of inescapable pre-determination?) Did the angels guarding of Eden stop Satan reaching Adam and Eve? Did they, on their own, manage to repel and defeat the rebels, or was this task only achieved thanks to the intervention of the Son? And what of this talk about “guarding duties”? Surely, the need for this arose after the rebel angels were expelled and a counter-attack from them seemed on the cards. For before the expulsion of the fallen Angels from Paradise there, clearly, was no threat of intrusion. Which bring us back to Satan’s complaint of being idle, spending along with his other fellow angels most of his time praising God in the manner in which the strict hierarchical ordering of things in Heaven 130 Kenneth Gross, “From Satan and the Romantic Satan: A Notebook” in Mary Nyquist and Margaret Ferguson (eds), Re-Membering Milton. Essays on the Texts and the Traditions (1988). 131 The Life of John Milton (2000), p. 468.

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required. Thoughts such as these must force us to return to a constant theme of this book namely, that the text is so rich that it lends itself to multiple interpretations. If that is so, a lawyer’s irreverent reading of it may reveal some new angles worth exploring. Notwithstanding the above, one notes that not all great artists felt compelled to end their story with the damnation of evil. If Milton and Mozart felt they had to accept this “convention,” if their work was to be staged at all, Goethe showed his rebellious individuality by doing the opposite from what the “expected pattern” seemed to require. Thus in his Faust, unlike Marlowe’s, the eponymous hero is saved in the end, partly through the love of a good woman but also partly because of the restlessness132 of his own spirit. This calls for an explanation in the form of a brief excursus. One final thought may not be out of place. Light colours stand out more if painted against darker tones. The “bad” may stand out better – more vividly, more frighteningly, more attractively – if contrasted to a weaker or non-descript “good.” We see this not only in Paradise Lost, about which enough has already been said, but also in the literature of other times. Later in this book much will be said of Ivan Sergeyevich Turgenev’s Fathers and Sons and of that masterpiece’s main hero Yevgeny Vassilyich Bazarov.133 But his power and unfulfilled talents stand out even more by constantly being compared to his disciple and friend 132 Thus note his statement (Faust, Pt. I, line 1759) “Nur rastlos bedädigt sich der Mann”, an attribute which Milton’s Satan seems to share. 133 A young scientist, of humble origins but educated, who believes only in irrefutable facts and useful knowledge, is invited to spend sometime in the country with the father and uncle of his fellow student and acolyte Arkady Nikolayevich Kirsanov. There his ruthless tendency to criticize all matter and to deplore art, lands him in to many disputes with the family. Later, and much against his will, he falls in love with the clever, cynical, aristocrat Anna Sergeyvna Odinstova who, though attracted by his revolutionary ideas, fails to reciprocate his love. Bazarov’s confrontational and, ahead of his times, revolutionary fervor means that the author has to “kill him off” at the end of the novel not because he is defeated but because he “stands only in the gateway to the future.” We return to the novel and its characters in Chapters VI and VIII, below.

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Arkady Nikolayevich Kirsanov. For Arkady is very nice, very ordinary, very easily influenced, born to follow (and to do so rather ineptly) rather than to lead. Again, therefore, we have the same fate: the strong is destroyed and the weak finds contentment. Is there here a not so hidden morale? Is it this, again, because authors have to comply with tradition? Or is it because like poets of all times, they have, in the end, to come down in favour of love, loyalty, religion and, of course, art? Turgenev is, in this novel more than others, so concerned to observe and describe that he hides for most of the time his own feelings. And he does this for us superbly, not in the portrait of Arkady who, for me, resembles the dullness of law’s “reasonable man” (about which more below), but in the portraits he paints of Bazarov’s parents. But even if we find answers to all of the above questions, what remains to be explained is why those who stand for “good” must be made to be so meek, so weak, and so ineffectual.

(f) Deviating from the “expected” pattern Goethe’s work, by contrast, does not follow strictly this established pattern of ending with damnation. Indeed, the “happy ending” that he gives to his story seems almost inevitable given that he has transmitted once again into his main character so much of his own personality. But whereas Milton’s deep beliefs and the period’s heavily religious climate did not allow subversion of the main message,134 indeed many have thought he did enough of that in the way he painted Satan, the same was not true of Goethe’s time and, at any rate, of his own, restless, rebellious, and pagan-oriented mind. Faust’s salvation thus seems almost inevitable, since so many of his features are also shared by Goethe.135 It also ties 134 For Milton could not have afforded to challenge “twice” prevailing views, having previously expressed some religiously heretical opinions of his own in his less well known prose work De Doctrina Chrstiana. 135 For helpful hints of this see Goethe’s last, confessional work with his Secretary, Gespräche mit Eckermann, 6 May 1827.

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in well with Goethe’s more “human” conception of God, the latter’s favouring (within limits at least) the restless pursuit of improvement by humans (nowhere even hinted at in the classical religious texts). Even the poet’s portrayal of Mephistopheles as a “baddie” with a sense of humour makes him sufficiently attractive to persuade God136 to “keep civil relations” with him.137 Mr. Ronald Gray, in his most attractively written book entitled Goethe: A Critical Introduction, in fact goes further in saying that for “a great part of the time” Mephistopheles “appears rather as a humorous, cynical, witty and sharpsighted man, whose unsuccessful function is to bring Faust to face facts, to destroy his sentimentality and make him accept responsibility for his actions, rather than to deceive him, or inveigle him into doing what he does not want to do. It is he who points out the absurdity of Faust’s desire for all human qualities (…); it is also he who gives the Biblical-sounding advice that Faust cannot add by his own efforts one cubit to his stature.”138 And, as if all this huge amount of common sense is not enough to be attributed to the devil, Goethe makes him utter the immortal lines which (indirectly) damn so much of the otherwise superb German legal literature when he makes him say “Grau, teurer Freund, ist alle Theorie, Und grün des Lebens goldner Baum.”139 The problem thus often seems to me to be that we are too quick at times to “blame” base human motives for the evil nature 136 Lines 336 ff. 137 See his words at the end of “Prologue in Heaven,” lines 350–53: “Von Zeit zu Zeit seh ich den Alten gern, / Und hüte mich mit ihm zu brechen. / Es ist gar hübsch von einem großen Herrn, / So menschlich mit dem Teufel selbst zu sprechen”. 138 Published by C.U.P. in 1967, at p. 144. 139 Grey, my dear friend, is all that theory is, and green the golden tree of life. Faust, Part I, lines 2038–39.

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of these grand characters of literature, forgetting that some of these motives can also be the spur to action and thus improvement in this world. Goethe, again, perceives this clearly (not least because his is a creature riddled with the kind of attributes which religion might call faults). He thus makes God tell us (indeed, almost condone) the fact that “Es irrt der Mensch, solang er strebt.”140 And to underline his belief in action he also makes Faust depart from St’ John’s version of the Gospel and tell us that “In the beginning was the act” (and not the word).141 These brief and selectively chosen excerpts not only lend some support to my theory that good and evil are made more interesting and even attractive if clothed by human characteristics, motives, and temperament; they also make – should make – us ask the question whether life, as originally designed in Eden, was conducive to action, creation, and creativity?142 Inevitably, I feel we are thus led back to the question asked before, namely, is goodness, especially religious goodness, difficult to conceive and describe by humans and, therefore, an unattainable ideal? The classical authors did not, I think, face these dilemmas. For their great characters – Achilles and Odysseus – could combine valour, patriotism, and loyalty, with pride, anger, and, in the latter’s case, deceitfulness. In other words, they were real not ideal.

140 Faust, Part I (Insel Vertrag, 16): “For man must strive, and striving he must err.” 141 Line 1237. 142 In Milton’s Paradise Lost it is tempting to interpret much of God’s conversation with Adam as suggesting that he sees him in the role as the Garden’s caretaker whereas Adam seems to be searching not only for human companionship but also wider knowledge. See, for instance, VIII, 369 ff.

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(g) The loneliness of evil (and the genius) Don Giovanni has often been compared to Faust; to my knowledge less frequently have such parallels been drawn with Satan. I am not at all persuaded that such comparisons are always convincing, except, it seems to me, at a very superficial level, i.e. in that their characters represent shades of evil. But what all three of these “bad” characters do have in common is a sense of great loneliness. In the subtitle of this sub-section I extend this characteristic to all types of genius, for I wonder whether it is not, after all, true in the cases of these high achievers, whether good or bad. So consider heroes who, though not without their faults, are far from evil. Achilles is more than a hero; he is a demi-God and behaves with the confidence, indeed, arrogance, that goes with such title. He prolongs the war of two worlds because he has been slighted over a woman. Later, he refuses Agamemnon’s entreaties to put an end to their dispute because the latter – haughtily it must be admitted143 – refuses to apologize.144 His sense of injured pride dictates his actions. It also leads to suffocating isolation. Odysseus is, likewise, lonely for most of the time of his long journey home. After the death of his father and his abandoning of Dido, so is Aeneas. The list could be magnified as one leaves through the wondrous stories of ancient Greek Mythology. The same is true of all the marvelous characters of 19th century Russian literature, briefly described in Chapter VII. If one moves from mythology to history and casts one’s mind to the great figures the picture is fairly similar. For these great men (and women: think of Elizabeth I) do not seem to me to have been “social,” surrounded by real friends, or to even had happy family lives. One only has to think of such great artists as Michelangelo and Leonardo da Vinci, Musicians like Mozart or Beethoven, religious reformers such as Luther or Calvin, philosophers like Kant, statesmen like de Richelieu or Bismarck or

143 Book 9, 189–93. 144 Book 9, 462–73.

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Napoleon, and the mind begins to wonder why “leadership” of any kind seems to be so cruelly condemned to such loneliness. Milton, himself, often alludes to his “solitude”145 during the sad, final years (during which Paradise Lost was written), though he had a supporting wife. Perhaps, it has something to do with Aristotle’s aphorism146 that only “beasts or God” can live in self-sufficiency or, to put it in the context of our present discussion, tolerate being alone. Perhaps, whether they like this state of affairs or not, such characters are condemned to it, faring in this respect less well than our average reasonable man – an observation to which we shall return below. Either way, this is too large a subject to explore here. And for the same reason, it may be equally out of place to extend our enquiry and ask why God is also placed in such a similar state of loneliness.147 Here, therefore, we once again briefly touch upon a wider idea – intriguing I think, and worthy of further study – and focus only on the undoubted loneliness of the evil figures examined in this essay. All of these “baddies” – and here art and life seem to coincide more than diverge – seem to be isolated and lonely. For “baddies” usually belong to gangs, cabals, groupings, but tend to have no friends. Milton’s Satan seems to be condemned to the kind of camaraderie that is found in gangs and groupings that inhabit the underworld. And though all their members recognize his pre-eminent status, one has no reason to believe that this camaraderie in Hell is sound or long-lasting given the “characters” of those involved. This state of affairs must, in itself, lead to loneliness and nowhere I think is this suggested more than in the description of the long journey Milton’s Satan undertakes out of Hell on his way to Eden. Mikhail Yuryevich Lermontov’s Demon may not be Milton’s “born leader.” But in his ambiguity and suffering I feel he has moments when he expresses his lone145 VII. 28. 146 1253a 25. 147 VIII. 403, where God accepts that he is alone but not unhappy. Adam’s response, deferential but witty, that he, a lesser being, has different needs, leads to the creation of Eve.

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liness148 which is “human” and not demonic, and can thus attract our sympathy as any devil ever can. Thus, in Mikhail Akeksandrovich Vrubel’s painting, originally in the Tretyakov Gallery of Moscow, but currently in the Russian Museum of Saint Petersburg he is magnificently depicted in the semi tones and shades of neither day nor night but of a twilight of sorts that reflect his melancholic swings of mind as he soars in great heights above the earth wanting to be loved. Once again, in poetry and painting we thus find bad depicted not just as plain, outright, unmitigated bad, the way religion would wish us to see it, though, also, not as banal and drab and unattractive as law’s examples. Yet loneliness can stem from other reasons, and one, in particular, may deserve further consideration since it may be relevant in understanding not only the position of Satan but also of those who find themselves in positions of leadership. For Satan is not just a “baddie,” he is also a leader. He tells us this himself,149 not being ashamed that his kingdom is Hell. And his fiefdom – Hell – and, indeed, the enemy camp – Heaven – are, as we have noted, both environments which are hierarchically structured, and thus what matters in them is loyalty and obedience rather than friendship or love. Since both these “settings” can be seen as power centres, involved in an ongoing power struggle, this overall description of what happens there rings true in many modern settings, such as modern corporate environments where the “life expectancy” of those near the top can be very short. I wonder how often the occupants of Downing Street or, come to that, the Hôtel de Matignon, have felt this way, perhaps

148 He expresses this to Tamara, the woman he loves and destroys in this way: “If only /You could but understand the lonely / Embittered boredom of existence / When, century on century, /Alone in suffering and Joy / In evil meeting no resistance, / For good receiving no reward, / Enclosed in self, by self most bored”. 149 “Better to reign in Hell than serve in Heaven,” see I. 263. Compare this with Achilles statement to Odysseus when, during the latter’s homecoming voyage, they meet in Hell: “By god, I’d rather slave on earth for another man – / some dirt-poor tenant farmer who scrapes to keep alive – / than rule down here over all the breathless dead” (The Odyssey, XI 555–58, Penguin Classic, English translation by Robert Fagles).

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with the Head of State breathing down their necks. If one is to judge from history books and political autobiographies, the occupants of such posts have to earn constantly the loyalty and obedience of their subordinates by threatening them, cajoling them, and, even, deceiving them. In addition, they must keep the morale and confidence of the subordinates high, even when they, as leaders, know that things are not going well and the circumstances do not warrant optimism.150 Maintaining this gap between reality and desirability is mentally and psychologically draining as anyone who has had to go through such motions can attest. Perhaps, because loyalty and obedience are so rarely found in this world, their absence is so severely punished in the other. Milton’s Satan must find himself in such a situation, though the point is not explicitly discussed in the poem. How he thinks and responds to his gradual degradation by God suggests much about his morale and state of mind. Making rousing speeches to keep the troops together and in fighting mood and, even, giving himself the occasional “pat on the back” must be more than difficult when he himself knows that as the story moves inexorably towards its vortex, his own chances of success are fading. Repeated statements to that effect151 give a hint of the pressure placed on Satan to say one thing in public while believing another in private. This must make him exceptionally lonely. The loneliness is just as obvious in Don Giovanni, though it is of a different order. For he seems to have no permanent abode, no family, no post or calling, no friends, just Leporello; and the relationship between them is not that good or stable, as the manservant admits at the very outset of the opera as he expresses 150 Milton provides us with an excellent illustration of this just after the end of the famous “What though the field be lost?” speech. For, just a few lines further down – I, 125–6 – he concludes: “So spake th’Apostate Angel, though in pain, / Vaunting aloud, but racked with deep despair.” Likewise, before the famous Nymphates speech he is described as being in “Horror and doubt distract” and full of “troubled thoughts:” IV. 19–20. For more see A. J. A. Waldock “Satan and the Technique of Degradation” in Paradise Lost and Its Critics (1947). 151 This process of (hidden) despair can be seen early on in the poem. See thus I, 125.

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his desire to cease being a servant. This loneliness of the Don must be enhanced not cured by the un-ending list of changing partners – 2064 for those who have never bothered to add up the figures given in the “Madamina” aria. For one must assume that they cannot, providing as they do little more than temporary sexual gratification, ever replace the calm and enduring happiness that comes from one, stable relationship. Finally, Faust, too, is isolated and lonely. In one sense he, more than the others, should be content with the solitude which any thinker welcomes in order to reflect and create. But as the plot develops it becomes clear that there is a difference between solitude and loneliness. And in his case solitude turns into loneliness, aggravated by his split personality, so obvious throughout the play but most movingly displayed in his marvelous “two souls” speech.152 And just to make sure that the rest of us appreciate it, he mocks his sidekick, Wagner, whom he accuses153 of not understanding him, not ever having experienced such feelings himself. Faust’s restlessness is good in so far as it spurs him to further thinking and further actions; it also saves him at the end. But it is also self-consuming since he has not learnt how to control it. The play seems to tell us that the constant search for perfection is good and even enjoys God’s support so long as man recognizes that complete perfection is only found in God154 and also does not lead man to behave in a bestial manner.155

3.2 In law If you now look at law the tables are turned. For if you look for style or grandeur in these contexts in the realm of law you will find none. Though intelligent criminals exist, grandeur seems

152 Line 1112: “Zwei Seelen wohnen, ach, in meiner Brust”. 153 Lines 1110–11: “Du bist Dir nur des einen Triebs bewusst; / O lerne nie die andren kennen!”. 154 See lines 1780–1784. 155 See lines 285–86: “Er nennt’s Vernunft und braucht’s allein / Nur tierischer als jedes Tier zu sein.”.

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to elude them. If poets like Lermontov have made us even feel sympathy with their Demon, few of us will nurture such feelings for most of those who languish in modern prisons. Thus, Simmons is downright evil and uncaring. He defies human comprehension and lacks all redeeming features. Likewise, the molester is a pervert, his perversion being only slightly understandable if one begins to see him also as a sick man. The intruding journalist conforms to the generally low picture the public has of paparazzi: greedy, intruding parasites who have learned how to make money out of the general public’s insatiable desire for sleazy stories. If there is one character worse than they, it must be the editor of the serious newspaper who defends their activities by invoking the sacred notion of free expression. This lack of grandeur, excitement, adventure, is also true of the “good” in law. Thus reflect for a moment on the law’s “reasonable man.” This is a cardinal concept for tort law, as it sets the yardstick of requisite behaviour that will determine what will subsequently be actionable or not. And yet, on reflection, he is dull and average. Only one judge in my opinion came close to giving this boringly average man a more exciting label.156 Otherwise, he remains not just un-named but also un-noticeable. Depicting him as a commuter, getting out of his Clapham Omnibus157 at the end of each day to return to his average family existence and cut his grass while the sun lasts is a marvelous image and just about sums up his existence.158 In defamation he appears even more humdrum, more human, more superficial, as he becomes the “ordinary man,” the kind of person who can think badly of a woman who is raped instead of feeling pity and or sympathy. Thus, in law, both the “good” and “bad” are common, uninspiring, unimpressive, appearing in dull rather than bright co-

156 In Lord Radcliffe’s beautiful imagery, the “anthropomorphic conception of justice”: Davis Contractors Ltd. v. Fareham UDC [1956] AC 686, 728. 157 Hall v. Brooklands Racing Club [1931] 1 KB 205, 224. 158 Hall v. Brooklands Club [1933] 1 KB 205 at 224, per Greer L. J.: “…the man who takes the magazines at home, and in the evening pushes the lawnmower in his short sleeves.” For American reactions see, inter alia, Harper, James Jr. and Gray, The Law of Torts (2nd ed., 1986), pp. 389–9.

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lours. Both tend to be characters easily forgettable. What a contrast from the fallen Angel in Paradise Lost where his grandeur led, as already stated, many of Milton’s critics to criticize him for making his God so ordinary, or Lermontov’s Demon who in his ability to fall each time he touches heaven came to personify so well generations of 19th century Russians whose potential was frustrated by the Czarist autocracy. Yet there is one area at least where “good” scores over “bad” and that lies in the fact that “good,” in the form of ordinary men, can be more contented than bad or very intelligent beings. For even though the texts make the archetypal good man of the law lead a drab life, he seems to have a family to return to – the civil law systems, unlike the Common law, expressly see him as a family man (bonus pater familias) not just reasonable (and single). At the end of the day (and by all accounts) he may not have achieved greatness in any shape or form; but the chances are that he will, at least, have found contentment. Bad or evil are not only seen and described in different ways; they are also treated differently by art and law so we must now turn our attention to this point.

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Chapter Four Just Deserts? 4.1 The treatment of the villain in art (a) Predetermined summary punishment Art often follows the (contradictory) biblical texts which tend to impose a predetermined punishment in a summary way. To any contemporary jurist this is harsh; and it becomes totally repugnant when one considers with little short of amazement the severity of penalties envisaged by texts such as Leviticus159 and Deuteronomy.160 These, it must be remembered, are not ordinary laws but laws given to man by his God. This is an aspect of the problem that these great works of art raise but few if any seem to have addressed in any great detail. To the extent that I am aware of, this is, indeed, true even of the huge literature generated about Paradise Lost, even after the re-orientation this discussion received following the appearance of the seminal monograph Surprised by Sin first published in 1967 by Professor Stanley Fish, now of Duke University in the USA. The expulsion from Eden offers an example. Genesis161 suggests that a kind of legal procedure was followed before the expulsion took place. No lawyer could fault what is there stated. For Adam and Eve are “summoned” to a hearing, told what they stand accused of, and given a chance to explain their behav-

159 21.13: death for homosexuality; 21.15: death to those who rape animals. 160 22.22–4: death for a woman guilty of adultery; 21.18–21: death by stoning for a son denounced by his father as “stubborn and rebellious”. 161 3.9–24.

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iour. Fortescue J. used this example in Dr. Bentley’s case162 as an illustration of the antiquity of the audi alteram partem rule, incidentally, underscoring the link between law and (religious) literature. But complaints, naturally by lawyers, have also been voiced why the same was not done in the case of the serpent since, at the time, he was empowered with miraculous powers of speech.163 The objection, as much the explanation offered for the omission – that God being omniscient knew that the Serpent had transgressed willfully – is too “religious” in its logic to warrant further legal discussion. That religious texts are often subject to hermeneutical rules of their own cannot be doubted; and possibly lawyers should be slow to extend their own reasoning to these texts. Still, if the objection about the different treatment accorded to the serpent is of any interest, it is because it suggests that different “accused” were treated differently. The standing of the audi alteram partem rule in divine justice is dealt a more serious blow by other biblical texts; and they convey a different picture. For in Saint Matthew’s account of the Last Judgment, Christ suggests164 that punishment and salvation come before those who are judged can say anything; and in Daniel V we are told that the moving finger, which wrote on the wall the damnation of Belshazzar, the soon-after deposed King, was given “no summons, information of the nature of the complaint, or opportunity to answer.”165 The religious texts thus remain ambiguous as to what extent the notions of divine procedure would satisfy the tenets of its earthly counterpart. That the violation of God’s command had a predetermined, fixed consequence (whatever their severity) is also an indication that discretionary justice does not hold much attraction to those who administer justice in Heaven. Asking Adam to explain why he ate the forbidden fruit, could thus not, and indeed did not, have any effect on his sentence. Genesis makes this clear 162 (1723) 1 Stra. 557. 163 Judge Pitt Taylor’s A Treatise on the Law of Evidence (12th ed. by R. P. Croom-Johnson and G. F. L. Bridgman), 2nd vol. (1931), note (o), at p. 1095. 164 Matt. 25, 31 ff. 165 R. F. V. Heuston, Essays in Constitutional Law (2nd ed. 1964), p. 185.

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in 2.17.166 The significance of observing the audi rule is thus diminished. One explanation given for even asking Adam to explain himself was that in asking Adam to defend himself God was merely intending to elicit from him the statement that it was the snake who had “beguiled him,” thus laying the foundations for a promise of redemption. But if God is omniscient, surely he knew this, too. In legal terms one could just about stretch this promise of future redemption to make it sound something like a future pardon; but again, it destroys the aesthetic and religious content of these texts to read them in legal ways so, suffice it merely to stress that they suggest some basic differences between divine and human justice. Much of this rigidity is echoed in the later literature of the Fall of Man. In Milton’s Paradise Lost, God, himself, makes the above points abundantly – “sternly” is Milton’s word – clear to Adam when he tells him:167 “The day thou eat’st thereof, my sole command Transgressed, inevitably thou shalt die.” The penalty is thus clear; it is unique; and it is very severe. Mitigation pleas are not allowed; nor does the judge / God seem to care about the summary way in which it is imposed, for it is all part of what He has foreseen having endowed man with a free will and He has predetermined.168 The opinion of the Supreme Judge is thus pronounced ex tempore, for He needs no time to reflect on the convincing nature of the defence: He has made His mind up long ago on what will happen, having Himself foreseen the events leading to the Fall and set the penalty in clear terms. Yet in the Miltonian version of these dramatic events a “defense” of sorts is offered to the culprits. It could be seen as an artistic “twist;” better, part of the effort to “justify the ways of 166 “But if the tree of the knowledge if good and evil, thou shalt not eat of it; for in the day that thou eatest thereof thou shalt surely die”. 167 VIII. 329–330 (my italics). 168 It is all set out clearly in Book IV.

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God to man.” In this sense it is, to put it bluntly, part and parcel of the effort to improve further the image of the “Son” since this “mediation” is in derogation to what is said in Genesis as the latter is silent on this point. Indeed, towards the end of the poem, where God, after man’s Fall, delegates his judicial powers to the Son he says:169 “But whom send I to judge them? Whom but thee Vicegerent Son, to thee I have transferred All Judgement, whether in Heav’n, or Earth, or Hell. Easy it may be seen that I intend Mercie colléague with Justice, sending thee Man’s friend, his Mediator, his designed Both ransom and Redeemer voluntary, And destined Man himself to judge Man fallen. But that is the “image,” not the reality (at any rate at the time of Adam’s trial). For at that stage at least, there is little sign of “mercy”; and the “defense” the Son offers on behalf of the “Fallen,” is not only brief – twenty-three lines – but also expressly limited to mitigating the sentence, not avoiding it or reversing it.170 But, in keeping with the inflexibility and previously decided nature of the sentence, God’s reply to the request that Adam not be expelled from Paradise is curt: “But longer in that Paradise to dwell The law I gave to nature him forbids.”171 Of course all this may be explained by reference to what is said in Book Three: for God, making man free and also foreseeing that he will be seduced by the devil, ordained a long series of suffer-

169 X. 55–62. 170 “Let him [Adam] live Before Thee reconciled at least his days Numbered, though sad, till death his doom (which I To mitigate thus plead, not to reverse). [XI, 38] 171 XI. 48.

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ings which will not be ended until someone else comes forward to offer himself as sacrifice to expiate the primordial sin. It is, indeed, at this stage that we get a glimpse of God’s plan, his giving man free will, his (God’s) relationship with the Son, and the latter’s selfless character as he offers to sacrifice himself to save man. Indeed, the way this is uttered (in quiet, firm, and most effective monosyllables172) represents, in my view, one of the few examples of “deity” being represented in this poem as attractive. Yet, once again, the language used still makes one wonder about Milton’s feelings as an artist. For, as Mr. Balachandra Rajan put it many years ago:173 “(…) (T)he spare precision of the language Milton gives him [the Son] is lit only seldom by the ardour which should inform it. Clothed in the language of Ezekiel’s vision his [the Son’s] triumph over Satan must have its moments of majesty, but it remains a moral rather than poetic victory.” So how the Son will, in the postlapsarian world, combine justice with mercy remains to be seen.

(b) The punishment is severe if not excessive The punishment is severe. The Fall from Heaven is caused by disobedience of one single command. How can the violation of one rule have such catastrophic consequences? Lawyers would find this difficult to comprehend and even more difficult to justify. But religious hermeneutics operate in a world of their own, incomprehensible to the un-initiated or disbelievers! Milton thus sees in the violation of this prime command “distrust in divine veracity,” “proportionate credulity in the assurances of Satan,” “unbelief,” “ingratitude,” “insensibility to the fate of offspring”

172 III. 144 ff. 173 Paradise Lost and the Seventeenth-Century Reader (1947, reprinted 1964), at p. 107.

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of our first parent, “patricide,” “theft,” “sacrilege,” and “deceit.” The list is still longer.174 Not only is the punishment excessively severe; it is also the same for all offenders. The accessory (Eve) will get the same treatment as the principal offender (the snake) as will Adam, at one removed again from the main culprit. It is noteworthy that this point, inevitably raised by lawyers, has also crossed Milton’s mind when, in the “Foresake me not thus, Adam” speech175 he makes Eve develop the idea of “graded” sin, hers being heavier than Adam’s: “Both have sin’ed, but though Against God only, I against God and thee, And to the place of judgement will return, There with my cries importune Heav’n, that all The sentence from thy head remov’d may light On me, sole cause to thee of all this woe Me me onely just object of his ire.” Eve addresses this plea to Adam, though we must assume that God, being omniscient, is aware of its content. If He is, it seems to make no difference. So, could someone else raise it as a defence? As already mentioned, in the Milton poem only the Son seems inclined to plead the case of the Fallen; but he fails to raise this point altogether. Notwithstanding the moving lines of Eve’s soliloquy, her plea, once again, falls upon deaf ears. Nor is there is any clue as to how old Adam and Eve were when they disobeyed the divine ordinance; but neither is there any indication that youth (or, come to that, any other mitigating circumstance) could soften the pre-ordained sanction. I need hardly add that such rigidity of religious justice is not one that commends itself easily to contemporary lawyers. The punishment also seems to be oblivious of any need for proportionality. The old Mosaic law “an eye for an eye and tooth

174 The Works of John Milton, xv, 181–83. 175 X. 913 ff.

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for a tooth” could, one might argue, be seen as embodying some idea of proportionality; but it is not only barbaric; it is also a rule that encourages the wronged victim to take the law into his hands. To be sure, one can oppose to this argument that such conduct was tolerated two or more thousand years ago. But this does not mean that such rules have any appeal in today’s civilized systems. In the biblical texts punishment thus often degenerates into a form of vengeance. Allusion has already been made to an extract from the Ten Commandments where the sins of the fathers are visited on the children and the children’s children. This, too, would not pass muster in the world of law; nor would its vengeful language, emphasized by the Lord stressing that He is “a jealous God.” Likewise, when the world is found to live in sin it is flooded, all but one man and his pairs of animals having been decreed to drown. The attempt to separate the sinners from those who were not (or less) guilty was, clearly, not even considered, reminding one of the action of the Papal Delegate who ordered that the cathedral at Bézier be torched, killing all inside and trusting that God would then find (and reward) his own among the burnt bodies.176 Once again, the Supreme Judge is portrayed as the Rex Tremendus of the Requiem. To a lawyer, he also appears to allow Himself to exercise His powers to excess. The same power is also awarded to those doing justice on His part. Solomon’s famous decision to allocate the disputed baby177 is preceded by his

176 Caesarius de Heisterbach, quoted in extract in Life in the Middle Ages (selected and translated and annotated by G. G. Coulton C.U.P. (1967), pp. 67–68. True to Christian tradition, the Abbot of Cîteaux who gave the orders of the massacre was, subsequently, promoted to Archbishop of Narbonne while Pope Innocent III, known often as the Great, rejoiced that, through this incident, God had “enabled as many as possible of the faithful to earn by their extermination a well-merited reward.” Today’s lawyers might have been tempted to think in terms of crimes against humanity! Whose attitude is better? That is not the point. More to the point is that a particular conception of justice and behaviour, lauded eight centuries (or more) ago, would be condemnable by all today. 177 1 Kings 3:16.

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decision to have the baby “divided in two” – that is, effectively, killed. Whether he would have carried out this threat, had not the “good” contender acted the way she did, we will never know for sure. That the threat could be made is, however, a fact if we are to treat the sources as describing a real event. To modern eyes, this is hardly a way of “doing justice,” even if it amounts to a gamble that, in the end, paid off. But it provides us not only with an example of divine justice being harsh justice; it also shows that what, at the time, was seen as proof that God had truly endowed Solomon with wisdom can nowadays be seen as an example of “male chauvinist” behaviour. One thus does not have to share modern feminist sentiments to see in this famous incident – probably the first major recorded history of a legal trial – another illustration of the point made repeatedly in this essay viz. that what may appear as just and brilliant to one age may be seen as biased and improper by another.178 To sum up, the incidents of “divine” or “divinely inspired” justice do not lend themselves easily to a contemporary legal analysis and, possibly less so, to approval. Probably, this is in part due to the fact that they do not provide lawyers with all the facts they need to exercise their professional judgment.179 Possibly, they also echo values and ideas which hold out less appeal to our generation than they did to others. Thus, in many cases, the only way a lawyer can be restrained from applying his principles to condemn such decisions is by being asked / ordered “to believe but not probe” on how divine justice works. No true lawyer can do this easily; yet this is what the Christian religion asks its followers to do: not to raise questions.

178 For a feminist interpretation of this famous incident see Professor Ann Althouse’s “The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook,” 88 Northwestern Uni. L. Rev., 914 (1994). 179 To my knowledge the most balanced (and intriguing) legal interpretation of this instance of Solomonian justice can be found in Professor L. H. LaRue’s “Solomon’s judgment: a short essay on proof,” 3 Law, Probability and Risk (2004), pp. 13–31.

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(c) The passage of time and its effect on the interpretation of the law The religious texts are replete with examples of severe punishment imposed for a wide variety of offenses.180 But though these texts were “handed down” or written over a long period of time, their self-confident wording suggests no awareness of the need to adapt either their wording or their interpretation. Rabbinic interpretation may flesh out details; but much of the original rigour seems to stay alive. Not only are the religious texts timeless; we are made (indoctrinated?) to think that so, too, are the underlying moral values. Clearly, there must be some merit in the idea that values, at their core, cannot be changed or, at least, changed rapidly and in a capricious manner. But change there must be, for everything, or so it seems to me, is subject to this inevitable law of nature. Those, especially on the religious / conservative side, must surely dislike this idea of flexibility or change or relativism, in which I, for one, find some appeal. But then let us not forget that “adultery,” figuring prominently in the Ten Commandments, was, traditionally, understood to include unmarried sex and even excessively passionate relations between married persons. Though some, Leo Nikolayevich Tolstoy for instance, tried to retain this wider meaning as late as the 19th century Russia181 (while himself shamelessly violating this same Commandment) the meaning of the word (and, I assume, the biblical Commandment) has now moved closer to the legal meaning of the word. Is this not an evolution brought about by time? And if it is possible here, is it not also possible to accept the need to weaken some extremely harsh pronouncements on homosexuality found in, for instance, Leviticus?182 I am, of course, conscious of the fact that many,

180 For instance, Exodus, 21. 181 In his Kreutzer Sonata, published in 1889. 182 Leviticus 21:13. It is, for me, particularly interesting to see that this “move” towards a “different” approach to the problem can be found as early as in Dante’s Hell – Canto 15 and 16 – where, though homosexuality is condemned by the very Christian poet, it nonetheless receives a compressed and

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more highly trained in the art of interpreting religious texts, can come up with a host of objections, convincing or not. Equally, it should not be taken as granted that the author feels any personal sympathy for this predilection. But the point that has to be made is that personal neutrality or even antipathy should not be translated into moral condemnation, let alone into illegality. Law adapts; and modern courts have often stressed the need to retain such flexibility. These religious texts do not. More importantly, they have no justification, where they are still found to apply horrible mutilations and harsh forms of execution. And let us not forget that some of the harsh punishments found, for instance, in Deuteronomy183 are also imposed in our times in Islamic countries by Sharia courts. So one is not here talking just of Old Testament notions of justice (mitigated or not by Christianity or Rabbinic interpretation); one is talking about the usual inherent rigidity found in religious systems and their rules, of whatever faith. To adapt and change is difficult; the older the person (or civilization or legal system), the greater the difficulty. To make a change, one must not only be realistic; one must also know how to forget and re-learn. The point I wish to make was well encapsulated in a short sentence by the Nobel Prize laureate Boris Leonidovich Pasternak when he wrote that sometimes in life184 “It is more important (…) to lose than to acquire. Unless the seed dies it bears no fruit. One must live tirelessly, looking to the future, and drawing upon those reserves of life which are created not only by remembrance but also by forgetting.” nuanced treatment that does not tally with earlier religious understandings. After all, Dante is guided to his redemption by Virgil; and it is in his second Eclogue that we find the shepherd Corydon yearning for the lovely Alexis. I see this treatment of homosexuality by Dante as providing early signs of the “spring” of humanism or, to put it slightly differently, the beginning of the return to classical antiquity. 183 22:22–24; in Nigeria and other Muslim countries women have thus been stoned to death for adultery. 184 “An Essay in Autobiography” reprinted in Poems 1955–1959 and An Essay in Autobiograpy, Harvill Pres ed. (1990), p. 39.

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I have italicised the words which I find interesting (indeed intriguing), for this, I think, is what is needed. That is to learn to “forget” precepts instilled in one in early life and to learn how to re-phrase them and re-evaluate them – always within measure and with conscious self-restraint – in the face of a changing society. Certainly, this happens in the law all the time, though as stated repeatedly, such a task is – and should be – undertaken by society only incrementally and with due deliberation. So, changing times must lead to new understandings of old texts, crimes, and punishments.185 Changes in prevailing morality must thus, in the end, be reflected in the law for otherwise those who apply the law – be they juries186 or judges – will find ways not to apply the law. Even religious writers of a conservative ilk are prepared to accept this. Thus, Professor C. S. Lewis expressed this in the following terms:187 “The law must rise to our standards when we improve, and sink to them when we decay. It is a lesser evil that the laws should sink than that all judicial procedure should become a travesty.”

185 In the context of imposing the sentence of life imprisonment the German Constitutional Court put the point beautifully when it said in BVerfGE 45, 187 at 229: “With all this, one must not lose sight of the following: Human dignity is something that cannot be disposed of without more. Insight into what is required by the obligation to respect it cannot be separated from historical development. The history of the practice of criminal law shows clearly that most cruel methods of punishment were replaced by milder penalties. Progress leading from crude to more human, from simpler to more differentiated forms of punishment has continued, with the distance yet to be covered becoming clearly recognisable. Any judgement on what [which treatment] accords with human dignity can therefore rely only on the present state of knowledge and insight, and cannot rightly demand to be considered valid timelessly”. 186 See, for instance, the jury verdict in the Pontyn case the details of which can be found in the following BBC file note http: / / news.bbc.co.uk / onthisday / hi / dates / stories / february / 16 / newsid_2545000 / 2545907.stm Last viewed in September 2006. 187 “Sex in Literature,” published in the Sunday Telegraph, No. 87 (30 September 1962) and reprinted in Lesley Walmsley (ed.), C. S. Lewis, Essay Collection. Literature, Philosophy and Short Stories (2000), p. 71.

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This is particularly true when interpreting “constitutional” documents – and I use the word here widely and not technically – which, as Lord Bingham so convincingly told us in a marvelous dissenting judgment on the death sentence, should not be interpreted as if they were charter-parties.188 And this, widely accepted, view is crucial for from the constitutional soil all other laws draw their nourishment. The importance of taking change into account here is doubly crucial. Crucial, first, in the sense of agonising over the issue which is causing nowadays so much pain to American judges, namely, whether they can, themselves, attempt to give effect to such a change or whether they must leave it solely to the elected representatives. But the agonizing is also crucial because often the basis of these legal changes depends upon “accepting” changes in underlying moral issues. The death sentence issue is such a problem; and in one sense takes us back to the issue whether “humanity” can and should challenge the idea of retribution and “just deserts.”189 But other phenomena, such as suicide, abortion, homosexuality, or adultery are issues which have strong moral roots which may no longer be able to support particular legal outgrowths. It seems to me that in all these instances, the currently accepted legal solutions have moved away from original moral precepts on which, however, sections of the Christian Church have shown a lesser ability to adapt.

(d) The lack of appeal, even in theory, against the Divine sentence Once imposed, the divine sanction is final. This, too, cannot commend itself to the legal mind. No doubt, the sole explanation for this must be that the chances of the Supreme Judge making

188 Charles Matthew v. The State [2004] 2004 WL 1372517 at p. 8. 189 In a famous “death sentence” case the South African Constitutional Court, which decided against the legality of its imposition, referred to the idea of a forgiving society as a factor to be taken into account when deciding the issue before it. Thus, see, The State v Makwanyane and Mchunu (Case No. CCT / 3 / 94 of 6 June 1995).

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an error are nonexistent. But what of the tendency already mentioned to over-react and make others, besides the prime culprit, suffer? In the end, none of this counts and the “fall” from Heaven is complete and irreversible. In the very distant future, and thanks to the Son’s (subsequent to the events described here) self-sacrifice, the condemned will be summoned by the sound of a trumpet to present themselves in order to be re-judged. But that will take a very long time. That is as close as one ever gets to an appeal in the system of Divine justice. In the meantime, and if the scriptures are to be relied upon, we seem to have only one human being who has ever made it to Heaven, and he is a most unlikely person: the robber who was crucified with Christ at Golgotha.190 The system clearly does not believe in “carrots and sticks” but only sticks. To me this is obvious in the stern expression of the old man depicted on the ceiling of the Sistine Chapel as he famously stretches his hand out and “transmits energy” – life – into the lethargic, still lifeless, body of the beautiful young man.191 But then “stern” may be the wrong adjective, though “joyful” is not the word one would use either. Austere might, in the end, be the better term to describe God’s expression, reflecting the intensity (and concentration) of “creation.”192 Yet, is this not, again, an instance of a man – Michelangelo – “divinely” interpreting the text of Genesis? For all that the latter says is that when God reached the end of his busy week he stood back 190 Luke 23.43. Interestingly enough Matthew totally ignores the incident, whereas the remaining two Evangelists, Mark and John, merely mention that the robbers joined the crowd in hurling abuse at Christ. 191 The late E. H. Gombrich, The Story of Art (11th ed. 1966, reprinted 1967) at p. 227 talks of life entering the “beautiful body of vigorous youth.” The lawyer’s mind, duller than that of the art historian, needs proof to be convinced, and I see none in either the depiction of the creation or in the story of life in Eden to suggest “vigour”. 192 Dr. Northrop Frye, analysing the Miltonian texts, comes close to the same ideas when he states that these texts “suggest that we ought to revise our conception of creation: it is not so much imposing form on chaos as incorporating energy into form.” See The Return of Eden: Five Essays on Milton’s Epics (1966), p. 52.

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and felt satisfied with what he had accomplished. Once again, therefore, it is the artist who has created (and tried to improve) the enduring image, not the revealed text.

4.2 In law (a) Better treatment for the accused However base, nasty, uninspiring or downright evil they may be, the law will treat its villains better than Divine justice does its own. The striving for fairness is not only real; it must also be seen to be made to look fair and efficacious, avoiding at all cost any idea of a “fixed trial” or, as theologians might put it, “predestination.” The punishment of the villain will thus come after a properly regulated and publicly held trial. The sinner’s degree of fault will be taken into account and his punishment made commensurate with the crime. The death sentence is now prohibited in the vast majority of nations even in the case of treason, which must be the closest equivalent to Adam’s crime.

(b) Taking into account his personal characteristics The offender’s personal characteristics (and those of the class to which he belongs) will be looked at in order to mitigate his sentence. In Simmons’ case his age at the time of his truly heinous murder constitutes a major reason for not imposing the death sentence. Delivering the judgment of the Court this is how Justice Kennedy put it:193 “Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies

193 125 S. Ct. 1183, 1195 (2005).

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respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” (…) It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behaviour.” (…) In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. (…) The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.194 This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment.195 The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. (…) These differences render suspect any conclusion that a juvenile falls among the worst offenders.” This brief extract represents, in my view, the essence of the majority’s objections to the imposition of the death penalty even though some of the dissenting judges expressed severe doubts as to whether this expert evidence was convincing and even though it was the Court’s invocation of foreign law that attracted the most venom from those opposed to the actual result.196 Likewise, in the earlier case of Atkins vs. Virginia197 the Court decided (on 194 “[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.” See Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869 (1982). 195 “[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting.” See Steinberg and Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty,” 58 Am. Psychologist 1009, 1014 (2003). 196 For instance, Justice Scalia at p. 1126. 197 536 U.S. 304 (2002).

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similar but also different198 arguments) that the death sentence should be deemed a cruel and unusual punishment given the “evolving standards of decency.” (c) Remission of the sentence This is possible in most systems after it has been imposed and partially served. For legal systems find much value in the idea that one should take into account subsequent repentance and good behaviour, and this for many reasons. To be sure, some incidents of early release have attracted, in Britain and elsewhere, considerable outcry, especially where the (prematurely) released offenders re-offended again. Yet this should not be blamed on the notion of remission as such but on the way it was exercised by those given the statutory power to order such releases. By contrast, and as stated, the Divine sanction can not be altered for good behaviour. Rigidity once again is valued more than flexibility. God – certainly the one of the Old Testament – does not forgive or bend; and artists (such as Mozart) who consign the hero to the flames of hell from which there is no return are, as we suggested earlier on, compelled by the conventions of their times to do so. As already stated, this need was felt so strongly and was accompanied by such pressure to convey this final message clearly, that the concluding (admittedly rather lame) sextet written for Don Giovanni was not, for a long time, performed, and even nowadays tends to be omitted from contemporary productions. The final damnation must thus be the last image imprinted in the audiences’ minds. Exceptions, however, do exist in literature; and, perhaps, it is not surprising that it is Goethe, so anxious in his life and work to reconcile Christian and pagan, Western and Eastern

198 A crucial difference between Atkins and Roper was the change of mind evidenced by State legislators on the issue at hand. Many more State legislators had abolished the death sentence for mentally retarded persons than for juveniles. Justice O’Connor and Justice Scalia for the dissent were both keen to point out this difference between the two cases.

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thought,199 who makes Margareta forgive Faust and thus assist his final salvation. For he, too, has committed murder, yet somehow it is clear that it is not murder in the first degree since Mephistopheles “paralysed” Valentin’s hand at the critical moment of the duel. But in divine justice forgiveness seems to be ruled out by definition; though millennia later, God’s Son incarnate will advise His own disciple Peter that man must learn to forgive seventy times seven.200

(d) Continued concern for the wrongdoer’s rights The legal process goes on caring about the wrongdoer’s rights – some would in fact say too much, and at the expense of those of the victim. The molester’s interests are invoked to give him a “human” aspect and bring about his protection against wrathful vigilantes. Even after he has come out of prison the law continues to be concerned about the preservation of his anonymity in order to prevent vengeful (or concerned?) citizens taking the law into their hands and seeking to impose their own punishment on the molester. It is only because he is seen as remaining a real threat that, in the end, the disclosure of his identity is allowed to certain persons. This very laudable attempt to weigh the competing interests takes much courage from our judges who end up not being praised but pilloried by the tabloid press.

(e) The balancing process of legal reasoning This could, for present purposes, be the last difference between Divine and human justice, and in law it takes two forms. The first is that a court of law is often asked to balance competing 199 This desire is seen in many of his poems but, mainly, in his Der West-Östliche Divan, a collection of exuberant poems inspired by the reading in his later life of the work of a medieval Persian Poet, Hafiz, which led him to the idea of trying to build bridges across the cultures of the East and the West. 200 Matthew, 18.22.

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values before declaring a bad act condemnable. Secondly, it differentiates carefully and subtly between offenders. The first goal is shown clearly in the Kay case. We may not like the idea of privacy being sacrificed to free expression; and we could sensibly propose a better way of balancing these competing interests. But the attempt is, at least, made; and if it does not always produce the best results this is not because the aim is not worth the effort but only because the line was drawn, as lines often are, in the wrong way. The balancing process is seen even more clearly in the Bulger case notwithstanding the repeatedly stressed heinous nature of his murder. For this to happen, resort is had to national and international texts, evidence is weighed carefully, and legal principles such as that of proportionality are closely scrutinized before the scales of justice are finally tipped in favour of granting eternal anonymity to the murderers. Frankly, this balancing process can, especially in Common law judgments, take up more space than I, for one, believe is necessary. Yet this detail also reveals the care taken as well as the merits offered by ad hoc weighing of the arguments, including the need to re-integrate into the fold the human being who has left society.201 The Common law judgments, longer and more explicit than their civilian counterparts, may also help reveal the attention given to every aspect of the case by judge and counsel alike. Once again, Christian or artistic justice has few such counterparts. One has to go back to the ancient Greek tragedy and find, again, the pagan God’s ability to appear at the critical moment and tip the scales in favour of the accused. This invention 201 That this value is, once again, appreciated by the ancient Greeks can be seen from the Odysseus myth. For though the resourceful (polytropos) hero is given by Calypso the chance – indeed the rarely awarded honour – to become a God and to live in Oxygia in eternal sensual and luxurious immortality, he chooses, instead, to return to the role of husband and father and king of a small kingdom. In his Inferno, Canto XXVI, 90 ff, Dante attributes this to Odysseus’s restless urge to travel and explore the world. But though Odysseus is a restless person – how many great achievers are not? – he cannot, I think, be accused of “travel lust” for if there is one constant and transparently expressed theme in the Odyssey it is his desire to return home.

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of the device of deus ex machina is thus not only a brilliant theatrical invention of Aeschylus which enables him to bring a tangled plot to its conclusion in his Orestia; it is one which involves the god – in the instant case the goddess Athena – not only to intervene in favour of clemency but, through bargaining,202 transform the Erinyai, relentlessly pursuing Orestes, into the Eumenides. This result, which leaves everyone as happy as can possibly be, is brought about by the same pragmatic goddess who so favoured that archetypal Greek hero – Odysseus – because he was so intelligent and so human, warts and all. The second point worth making here is even more obvious in law, both criminal and civil – yet, again, divine justice seems to ignore it and lump all offenders together. Thus, in the book of Revelations203 we are told that “But the fearful, and unbelieving, and the abominable, and murderers, and whoremongers, and sorcerers, and idolaters, and all liars, shall have their part in the lake which burneth with fire and brimstone: which is the second death.” How much more human and also more convincing is Dante who, while placing all of the above in Hell, makes them inhabit different circles in a manner more suitable to the gravity of their offence. But it took the Middle Ages to invent, despite their deep spirituality, the idea of iustum contrapassum.

202 This bargaining which takes place between ancient Greek gods – an early version of alternative dispute resolution? – is often based on flattering the opposing god. That is how Zeus finally settles the fate of Aeneas with his wife Hera. 203 21.8.

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Chapter Five Some Technical Reasons for the Differences We saw above how law and art treat villains and justice differently. We shall in this section explore some of the reasons that lie behind this different treatment. But, to begin with, one must set the scene by reminding the reader of the different angles from which each branch of learning looks at the same subject. Thus, as Judge Posner, who has written on law and literature (but not discussed the issues explored in this essay), has said:204 “We must distinguish between concrete legal problems, which lawyers are expert in solving, and broader issues of legality, governance, and justice that are the grist for moral, political – and literary – examination205 rather than for technical legal analysis.” Notwithstanding this warning a few specific comments can be attempted, especially if one bears in mind the fact that some of the religious texts206 can be seen as both literary and legal documents. Indeed, many of the religious texts deal with “concrete legal problems.” In any event, the points I make below do not merely refer to legal technicalities (though I touch on some nonetheless) but can be seen as emanations of the kind of wid204 Law and Literature. A Misunderstood Relation (1988), p. 76. 205 I have italicized the two verbs – solve and examine – deliberately because not all authors feel their task to be to provide answers but to describe a situation and then let the reader take a stance. See, on this, Chekhov’s views, given below in Chapter VIII, note 404. This personal detachment must not be confused with the ending given to a plot, for instance, the fall of the hero, which may be dictated by other factors. 206 The Ten Commandments must be one; certain passages from other parts of the Exodus offer another.

Chapter Five

er issues which Posner (rightly) thought were proper subjects to be addressed by art and literature. In my opinion, therefore, Posner’s “warning,” useful though it is, does not invalidate the appropriateness of the following comparisons / explanations.

(a) Divine justice has clear lines to follow This is must be obvious from what has been said thus far; and, since the guidelines have been set by God, they are taken to be both correct and immutable.207 We shall say more about the “immutable” aspect of divine justice in sub-section (d) below. Here let us, however, question this un-swerving belief that there is only one correct answer to any particular form of “bad” conduct. Adam’s expulsion from paradise is an illustration already discussed. The death sentence proscribed for a multitude of sins in various books of the Pentateuch offers more. In the world of law, though legal rules do exist which show a strong preference for one course of action – the American First Amendment could be cited as an illustration (even though it is easy to underestimate a tendency for exceptions to spring up) – most legal systems tend to favour balancing the competing interests of speech, reputation and privacy before reaching a decision or imposing a sanction. We have thus noted that in the laws of the European Continent, especially Germany where the excesses of a not too distant past have left their mark, the development of the law of privacy has sanctioned such an ad hoc balancing of the competing values.208 To put it differently, all these systems feel that there is no one right answer / sanction to these situations other than to undertake an ad hoc evaluation of the various pros

207 In the case of the Old Testament subject to rabbinic interpretation which may expand the meaning of the texts. 208 For a comparative discussion of English, American, German and French law see Markesinis, O’Cinneide, Fedtke and Hunter-Henin, “Concerns and Ideas about our Developing Law of Privacy (and how Knowledge of Foreign Law Might be of Help)” 52, The American Journal of Comparative Law 133– 208 (2004).

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and cons presented by the parties before preceding to any final determination. Even in England, where the Press and the Press Complaints Commission have, during the last forty years or so, fought tooth and nail against any change in this part of the law, intrusive techniques (like the use of tele-lenses) have gradually been banned in the various self-regulating directives issued by the Commission. So, once again, we see that the views of society force changes of the legal rules and that, in turn, makes them more acceptable and respected. We also saw the same such response to societal demands to expose the identity of a paedophile who still presented danger to other children in the neighborhood he chose to settle in after his release from prison. But where this is not to have been the case, the anonymity of the ex-criminal might well have prevailed over other interests of the public. Once again, the judicial decision reveals the agonizing which the judges must have experienced and which led them to deliver nuanced opinions. The fixed sanctions of the Pentateuch are, once again, missing; and the certainty that the God / Judge feels in his judgment is not found – should one add “happily?” – in his human counterpart, be that because the latter is fallible or because he is conscious of the infinite variables that make up conduct and effect.

(b) The need to protect the villain This may be a relatively new “accomplishment” of legal science; but it is totally absent from the religious legal texts and, so far as one can recall, literature. One of the rare examples to the contrary are the early biblical signs which support the idea that there may have been some adherence to the audi alteram partem rule though, again, we noted that the biblical texts do not speak with one voice on this matter. In modern law, the need to protect the legitimate interests of the “bad” person goes far beyond the audi rule. But this obligation does carry with it the real and often unacceptable risk of watering down the rights of the “good,” the “innocent,” and the —

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“victim” in order to do justice to the villain. The Bulger209 case recently brought this out. The public outcry against the murderers, however, did not prevent the very experienced judge who tried the case from attempting such a balance of competing interests. We admire her all the more for that. The same balancing exercise was carried out by an earlier, famous decision of the German Constitutional Court involving the right of a condemned robber to enjoy anonymity after his release from prison in the interests of being reintegrated into society.210 The aim was, roughly speaking, the same, though I may express my preference for the German judgment which spent less time than the English decision did in repeating the arguments of the parties and, instead, chose to focus on the merits of the clashing values – free speech versus privacy. I have said this before and I will repeat it here: in this context I think our German colleagues have been better in building legal criteria against which the claims of the competing values should be measured, whereas we try to twist and transform old torts invented for very different purposes. But that, for present purposes, is a matter of detail.

(c) Does the law neglect the good? But does this way of thinking lead the law to see good people as ordinary and neglect their protection? Achieving the right balance is very difficult when the words which the judge must interpret are vague or open-ended. Consider the point which has caused so much concern in England not that long ago, namely, the force an owner / occupier can use against an intruder.211 The 209 [2001] 2 WLR 1038. 210 BVerfGE 35, 202 = NJW 1973, 1227, reproduced translated into English in Markesinis and Unberath, The German Law of Torts. A Comparative Treatise, 4th ed. (2002), 423 ff. 211 A career criminal shot and injured by an owner of land as he raided the latter’s remote farmhouse was given permission to sue the jailed farmer for damages. The matter made headlines well after the original criminal trial had held that the owner was criminally liable for shooting the intruder. See, for instance, http: / / www.guardian.co.uk / martin / 0,,214318,00.html.

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difficulty here is considerable; and the danger of judges losing the confidence of the general public when deciding such issues is real. Nonetheless, for present purposes, it is sufficient to note that what is not in dispute is that a balance has to be struck between competing interests; the doubts arise in individual cases when the way the line is drawn is not to everyone’s satisfaction; but that is a very different problem. Even more recently, the same worries were experienced as a result of a premature release from prison of offenders who, immediately, proceeded to re-offend. As is fashionable these days, the Human Rights Act 1988 was (partially) blamed for this, but the truth is that it had nothing to do with the matter. For parole boards, who decide these issues, do so on the basis of instruments and guidelines which require them to take into account these dangers. Thus, if a particular decision turns out to be a bad one, it is something which should be regretted and, arguably, entail a series of legal consequences; but the principle that a well-behaved prisoner who causes no further danger should be allowed some remission of his penalty is a proposition that would command much wider support.

(d) Human justice must reflect a changing society; Divine justice is largely immutable Many of the previous observations could be brought under this heading. Yet we need a sub-heading of its own in order to stress how astonishing, in recent times, that societal change has been; astonishing and far-ranging in more ways than one. Law’s ability to change and adapt to reflect prevalent morality has already been noted and, to a great extent, praised. Examples were thus given showing this link between legal and moral solutions. But the changes have also come about in a wide range of subjects where “good” and “bad” may not have strong moral overtones. Yet, here, too, we see a shift from what was once seen as a “good” practice, perhaps tenuously linkable to philosophical ideas such as “autonomy of the will” and “free will” but, essentially, reflecting prevalent economic interests. The change here has been one of source as well as underlying philosophy. —

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Thus, if one looks at contract law one will immediately see that what was once the core of the Common law has, under a series of statutes reflecting the consumerist spirit of our age, as well as a series of EU-directives, turned traditional contract principles on their head. The change here is not only one of source but also of underlying values. These are patently social and political values though, I repeat, it would not take much ingenuity to link them to philosophical ideas with moral undertones.212 The consumerist spirit, however, which has done so much to shape modern Continental law and related European Directives, is not found in the Common law of torts. Here, economic analyses, undertaken by judges who may not always be the best equipped to undertake them, have meant that large areas where a “wrong” has been committed are left without redress because of the judges’s fears that liability might bankrupt the system. The main beneficiaries of such a rule are statutory bodies of all kinds (typically local authorities) who, as a result, enjoy in English law a considerable degree of a priori immunity.213 But what is surprising about these shifts is the constant neglect of the basic principle which is that if a wrong has been committed redress must follow unless there are concrete reasons why it should not. Lord Bingham thus remains the strongest voice of this orthodoxy;214 but, for the time being, he is also left as a vox clamantis in deserto. As stated, this mixture of different sources of law used in order to reach the final result is also seen in the Bulger case; and this, too, is a decision which is preceded by much agonizing and which might not have been decided in the way it was a few de212 For a detailed study of this phenomenon in German and English law see Markesinis, Unberath, and Johnston, The German Law of Contracts. A Comparative Treatise, 2nd ed. (2006). What is particularly interesting to note here is how the European consumerist movement has resulted in a degree of harmonization of what otherwise would be fairly different contract rules in Germany and England. 213 The phenomenon, however, if studied over a period of fifty years or so, seems to ebb and flow. 214 On this see his epigrammatic view in X. v. Bedfordshire and, more recently, in D v. East Berkshire.

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cades ago. The diverse sources of influence that go to produce the modern judgment are, invariably, concealed from all but the most expert who know how to study the movement of ideas, but they are there and show how many factors can enter the equation. In contemporary family / criminal law the changes have been even more radical and though once feared, on moral or religious grounds (or both), now seem more and more accepted (or almost) by the majority of the population. Thus, abortion has become much more prevalent than anyone would have thought a mere thirty years ago; divorce laws have been liberalized, again much against the will of the Catholic Church; the abolition of the differences between legitimate and illegitimate children no longer raises an eyebrow; the restoration of the death sentence has its ups and down; but it is only in Iran, China, and the USA where it still seems to receive official approval; and homosexuality between consenting adults in private has been decriminalized. The last bastion to fall is related to the recognition of partnership rights between persons of the same sex and this is in the process of obtaining wider acceptance of the public as it has already received by the law of even the most Catholic of countries. The point here is surely not whether we approve of all these changes. Personally, for instance, I confess to having great difficulties over the issue of the adoption of children in the context of homosexual partnerships because I remain unconvinced that adoption in such situations is unlikely to be in the interests of the adopted child. But the point, surely, is that the democratic process has ushered these changes in, notwithstanding some very harsh language in religious or other moral texts. For, as already stated, their “eternal” nature makes them unable to change with evolving standards of decency as the more temporal rules of human justice do.215 The growing realization of the rapidity of technological progress has put law and lawyers under new and greater pressures to 215 To what extent they can change as a result of theological, rabbinical or other interpretation is another matter. Bu we must not ignore the fact, as explained elsewhere in the book, that subsequent interpretation can, sometimes, result, in a harsher rule!

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respond to challenges and opportunities presented by our new world. We see most clearly this type of change in those areas where the matter regulated is dependant on advances in technology216 (in vitro fertilization, organ transplants, stem cell research, actions for wrongful life, the appearance of e-commerce, the internet, aspects of intellectual property etc). The medical issues, given at the beginning of this list, raise particularly acute moral concerns, especially because even the supporters of these innovations accept the need for some “regulation.” But we would also be remiss to downplay the fact that the pressures for technological advancement (and for law to sanction them) are, more often than not, opposed by religious groups invoking religious texts or ideas. To many this can only be yet another sign of the belief that our values and rules were, literally, set in stone, many thousands years ago when Moses received them in the desert. Important though all of the above instances may be, by far the greatest evolution to human rights law has, again, taken place in the face of opposition from religious groups – and here I include Christian, Orthodox Jewish, and Muslim believers – determined to exclude an individual’s right to determine his own sexuality and his or her relations with others of the same sex. Though here the liberalizing change, though recent in origin, has been rapid, it has been vociferously opposed in two very different kinds of societies: sections of the USA and the Middle East. This strange grouping is because in these two areas of the world, religious ideas have successfully managed to harness the political process to its cause, thus transmitting their inherent rigidity to living law. How this rear-guard action, caused by this fusion of law with religion, will do at the end of the day, is still difficult to predict. But the friction it has brought to law has been as great as the divisions it has caused in society, itself.

216 The literature is enormous but it is interesting to see how the judges themselves see this need. On this aspect see, for instance, the views of the First President of the Cour de cassation M. Guy Canivet in “Le juge entre progrès scientifique et modialisation,” RTDCiv, 2005, pp. 33–46.

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(e) Different tasks Another reason for the different treatment of good and evil in art and law is due to the very different tasks that God, artists, and lawyers are called upon to perform. God having given his law simply has to apply it. How He would do that if what happened was not quite what He had prohibited we are told by the texts for, as stated, He simply visits the sinner with his wrath. The artist, too, is more concerned with the dramatic effect of his message than in wasting time describing the process of the trial and the details of the punishment. But this is precisely what the lawyer must do; and since he has to do this in the context of an increasingly voluminous and complex statutory and decisional material, local as well as international, his attention to detail is more necessary as his language must be precise rather than grandiose. When the volume and complexity of material was less than it now is, we did find judgments which displayed literary features. But an unbelievable increase in the volume of legal material and litigation, coupled with the growing need for the judge not just to apply the law mechanically, so to speak, but to interpret it taking into account the changing expectations of a changing society, means that his product – i.e. the judgment – is bound to get further and further away from the far shorter and, arguably, simpler judgment depicted in various forms of art. Since the above changes have been accompanied by a considerable decrease in the time available to him to deal at leisure with the issues at hand, the form his judgment takes is also becoming less artistically attractive. This brings us back to the first half of Posner’s statement cited earlier on. Nowadays, the ability to combine both substance and style does not come easily. One might even be inclined to argue that it is rapidly waning, the likes of Holmes, Cardozo, or Denning now hardly being encountered among the younger generation of lawyers or judges. That is a great loss for which our constantly reformed educational system may carry part of the blame. Here, I am not only referring to the decreased time spent at school reading languages, literature, or drama, and being taught proper —

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grammar. I am also referring to the effects that our wider “culture” has on our youth. For the vast majority of this malleable group exposed to the constant material commonly found in today’s films, television, and popular press is accustomed not to care about how to express its thoughts. In my opinion, young lawyers are subject to further pressures which downgrade their ability to write. One, of course, is the excessive use of the computer which has transformed so much of contemporary legal research into the art of “searching,” “highlighting,” and then “dragging.” The pressure to turn written recommendations or memoranda into what is called “bullet form” presentations – nowadays the rule in the City – can also make the young lose their ability to express themselves through clear and concise English (or any other language, come to that). Political correctness has also, in my view, further degraded legal work (as I explain in the last subsection of Chapter VIII), forcing us to use erroneous terms (e. g., gender instead of sex, even though the first is a grammatical term and the second denotes biological differences) or, mechanically, turn male plaintiffs into female (even where inconsistent with the facts of case) simply in order to give the impression that we are redressing an old substantive injustice. Finally, the language of the law has not been helped, certainly not made more attractive, by the attempts made by certain academics to introduce the terminology of the so-called school of deconstructionalists who owe so many of their ideas to the French Jacques Derrida. These colleagues, however, invariably populate the margins of legal scholarship, so they have not yet had any real effect on mainstream law.

(f) The lawyer’s need to convince In their texts law and lawyers also have to convince. God never has to do that; and artists often are also exempted from this onerous task. The imposition of a most harsh and hereditary penalty for eating from the Tree of Truth needs no justification; all it calls for is a reminder that it was already laid down by God. It all becomes a matter of a very few lines. —

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Giving reasons in law has not always been a keenly felt aspect of the judicial process. The French kings for instance never gave reasons for the decisions; and up until the French Revolution, the French courts acted in a similar manner. Even today, when an obligation to “motivate” a judgment is imposed by law, some courts resolve disputes with the minimum of explanation. The decisions of the French Cour de cassation are, arguably, one of the greatest offenders, though other ways do, in fact, exist to discover that the process of deciding in France is, in fact, nowadays as meticulous and, indeed, often remarkably similar to ours.217 This enterprise may not only be more technical; it is also subordinated to numerous technical requirements. In my view it would be too harsh, indeed it would be based on a lack of understanding on what actually happens, to call it unsatisfactory, opaque, or bad. For, in whatever legal system it is taking place, it calls for an extraordinary combination of talents: judgment, moderation, knowledge of what precedes the case in hand, coupled with an awareness of what is needed in the future. All these things have, to varying degrees, to be taken into account before one can reach a sound legal decision on a particular dispute. Moreover, if, at the end of the day, innovation is called for, it requires the judge to attempt it in a way which will usher in the change smoothly, avoiding sudden breaks with the past or disrupting established practice. Yet, as stated, it is stylistically not on a par with what happens in art, and may even contribute to lawyers acquiring the rather “bad” image they tend to have in most societies.

(g) Motives, outlook and mentality Finally, a word or two should be mentioned about the motives, outlook, and mentality of the dramatis personae. These are fre217 Professor Mitch Lasser of the Cornell Law School is among those who has done much to demonstrate this. Thus see, “Judicial (Self-)Portraits: Judicial Discourse in the French Legal System”, 104 Yale L. J. 1325, 1326–27 (1995).

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quently unclear and always complex; and they are more often the subject of attention in literature than in law. The wording, phrasing – musical or grammatical – of the artist can, implicitly, give rise to speculation and different interpretations. These differing views can only help enhance the image of a character, making him simultaneously more controversial and intriguing. Most judges, especially in the civil law tradition, do not even try to do this. The character of Satan for instance in Paradise Lost has been the subject of endless speculation as literary critics of all kinds have given their (differing) views as to why Milton should have tried to present him as so impressive (especially in books 1 and 2) and then proceed gradually to “degrade” him as the poem reaches its conclusion. The same speculation has occurred as to Milton’s description of the Son; and these interpretations can alter depending upon whether one only looks at the more restrained wording of the poem in comparison with the more theologically controversial (prose) piece by Milton entitled De Doctrina Christiana in which, most commentators believe, he comes close to espousing Arian ideas about the nature of the Son. I mention these examples as instances of the arduous if not impossible task of finding out the exact nature of Milton’s sympathies, notwithstanding the fact that he is widely assumed to have been a devout Christian. Such speculation is, I think, inevitable given that “[Satan’s] regression faces us with a sort of vacuum and though the values which triumph over him are everywhere announced they are never brought to the foreground of our assent. Milton can describe pride, and in doing so condemn it; but love is to him never much more than loyalty,218 and

218 Personally, I see this also in the texts of the Old Testament, and I think we have to wait for Saint Paul and his Epistle to the Corinthians 1,13 before we find more emphasis placed on “love.” And even though this is “Christian love” we are talking about here – appropriately translated in the King James Version as “charity” – the features attributed to it by Saint Paul are very human, if idealised.

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humility teaches him only to “stand and wait.” He may justify God’s ways but he does not celebrate them.”219 In law such examination of the psyche and motives of the parties, and of the author of the judgment (i.e., the judge), is much briefer, though in my view often necessary if one is to understand fully what has happened and what has been decided. The young murderer is hardly the subject of the deep scrutiny that Raskolnikov receives in Fyodor Mikhailovich Dostoyevsky’s Crime and Punishment; nor, in a sense, do we expect this from the legal process. Likewise, though there is more analysis of character and the effect that legal decisions can have upon it in the Bulger litigation, true motives and outlooks are, again, ignored in the privacy case we looked at briefly. The greedy motives of the intruding journalists are almost always in such cases concealed by references to the supposed public interest.220 The Press these days is untouchable; but even saying this must be left to the supposition of the commentator with little or slender evidence, found outside the judgment, to support it in a legally convincing way. Yet all these background factors must, in some cases, be studied and understood if one is to comprehend the causes of “bad” or “socially undesirable,” and to find the best way of dealing with it. This leads me to my last observation under this heading. By far the greatest omission of the legal process is its almost complete silence on the judicial psyche, outlook, mentality, and on why it reached the decision that was reached rather than on how it was explained to the world of lawyers. The second part of the process is purely legal, conceptual, and to that extent almost barren. It is of interest to lawyers and only lawyers; and even the affected parties – the litigants – must often wish it was put to them in plain language. But the first part of the process – how the 219 Balachandra Rajan, Paradise Lost and the Seventeenth-Century Reader (1962), chap. 4, esp. p. 107. 220 Though in the Douglas v. Hello decisions, much information is given about the way competing glossy magazines operate in order to obtain “scoops.” Thus see [2001] QB pp. 967 ff.

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judge begins to move in the direction he is going to go – is more related to judicial psycho-biography and is hugely important. Yet it has not been studied by academics (British, at any rate, for if, once again, we turn to America, we do find some discussion of the way these background factors help shape the final outcome of a case). This may be due to the fact that these elements are elusive, rarely revealed, and often susceptible to wrong interpretations by those who wish to misunderstand them. Moreover, in order to build up a plausible picture one must often combine material which is legal, biographical, or historical – put simply, something that is not likely to appeal to many lawyers. However, this does not mean that they are not important for the understanding of the final outcome.221 One is also inclined to add that their absence deprives legal texts of some of the best opportunities to study “good and evil,” and the consequences that each attracts in the domain of law.

221 On this see my “Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding Recourse to Foreign Law,” 81 Tulane L. Rev. 1325 (2006).

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Chapter Six The “Flawless” Hero We have, so far, concentrated our observations on various manifestations of bad or evil. But, as we have seen, the artist, at times, in describing them, also endowed their possessor with other human qualities and, even manipulated them in such a way as to bestow on the “flawed hero” a sense of grandeur, if nothing else. But what about the “flawless hero,” such as Aeneas or Rodrigo de Bivar, known as the Cid? And they, too, have been made to look grand – invariably because of the times in which such works were written or composed. But are they less likable to us for being flawless? To put it slightly differently: we can see them as models of inspiration – nowadays we talk of iconic figures – but could it be that we see nothing of ourselves in them? And how different in the end is their fate compared to that of the “evil” character endowed with heroic features? Briefly let us look at two such personages, a mixture of reality and artistically created legend.

(a) Aeneas Aeneas is a flawless hero pursuing in Virgil’s classic poem The Aenead a journey as complex and as hazardous as that of the returning Odysseus. Constantly assisted by a goddess, who also happens to be his mother (Venus), he meanders in the first six books of the poem from the fallen Troy to Mountain Ida and then to Carthage where, like Odysseus and Calypso, he will be tempted to stay for ever with his mistress, Dido. His father’s preceding death in Sicily seems by now to have provided the liberating force from the paternal authority so, in human terms, the plot could have ended there with the hero living happily ever

Chapter Six

after with his mistress / Queen (who is also a refugee). However, a sense of duty, which will guide him all his life, and his piety (which has earned him the support of other gods such as Apollo and Neptune), spurs him on to Italy, despite the weeping, and a threatened suicide which Dido in fact carries out. Once on the mainland of Italy, and after a visit to Cumae for divine guidance, he finds himself in a new role, closer this time to the heroes of the Iliad (rather than the Odyssey), fighting many battles with local kings and interfering gods, (notably his sworn enemy Juno, at times in alliance with Artemis) until he finally kills his arch enemy Turnus and lays the foundations of Rome which he will never live to see. In all this the poet reveals him, time and again, as a pious character, a pacifist who sees the unnecessary misery that war brings in its wake, constantly being alive to the needs of the dispersed emigrants in search of a new homeland. Though the last of these points does not apply to Virgil himself, the rest clearly reflects Virgil’s own agony at the internal civil wars that raged in Italy during his times, first because of the clashes between Julius Caesar and Pompey and then Mark Anthony and Octavius (the final winner). Once again, these aspects of Aeneas’s pursuits ring true because they reflect so strongly his creator’s personal concerns. But it is Aeneas’ character that gives the play its eternal appeal. Aeneas is as flawless as any human can be. But has Virgil deprived him of human qualities to make him too perfect and remote? On balance, “no;” though here and there, those of us who are mortals and not heroes might expect a greater display of human weaknesses. Thus, his parting with Dido, expressed in short (and often not very convincing) replies to her own fiery speeches have often been used as ammunition to show his lack of love – certainly passion – and even to make him look like a “cheat” since he keeps his imminent departure (ordered by a message brought to him by Hermes at the command of Zeus) secret almost to the very end. This abruptness of his “good-byes” was, in fact, reflected in the work of subsequent artists and musicians such as Henry Purcell who in his opera “Dido and Aeneas” gives the Queen two moving arias and limits Aeneas’ responses to rather bland duets —

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and a recititativo.222 It is thus not entirely convincing to argue, as Professor C. S. Lewis has done,223 that we tend to think this way (and feel unhappy) at Aeneas’s decisions because of a more recently acquired “increased respect for women;” others, living in earlier times, were very much alive to this point. Yet, to argue the other side – and incidentally put forward the view that our poet gives his hero a great sense of duty but makes it grander by giving him human qualities – we must recall that Aeneas is, throughout this poem, portrayed as a man of great humility. Thus, the earlier scene where, at Dido’s request, he recounts the story of his escape from Troy and subsequent peregrinations is characterized by considerable self-effacement. So where does this lead us? I personally feel that this self-effacing, essentially humble attitude is the kind of human quality that Virgil’s audience would have appreciated, compatible with contemporary ideas of Roman civil virtue and different from those epitomized by the archetypical Greek “operator” – Odysseus224 – whom Homer so beautifully describes with one of those untranslatable words: “polytropos.” Yet even if we accept the above, it becomes less easy to explain Aeneas’ lack of ardour or passion when leaving Dido. To be sure, duty must prevail; but could not the “good-bye” be warmer? The poet seems aware of the need to balance all these feelings; 222 The literary dispute about the treatment accorded to Dido is reflected in music. This in Berlioz’s opera Les Troyens Aeneas receives a better treatment than he received at Purcell’s hand, though, it should be noted, not for the depth of his emotions towards Dido but for his sense of duty, typically stirred by the appearance of the shadows of Priamus, Hector, and Cassandra. 223 A Preface to Paradise Lost (1942; 1961), p. 38. 224 Odysseus does not go for understatement but is quick to proclaim, even exaggerate, his fame. Thus when he introduces himself to King Alcinous he says of himself: “I am Odysseus (…) known to the world / for every kind of craft – my fame has reached the skies;” Odyssey, IX. 21–2. Only once in his peregrinations does he conceal his fame and change his name to Nobody, and that is when he wishes to trick Polyphemus. But even here, after he has escaped, he cannot resist the temptation of revealing to the Cyclop the identity of the person who blinded him: IX. 560–2 – a mistake which allows the blinded Polyphemus to enlist his father’s help – Poseidon – and make the hero’s homeward journey even more difficult.

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and even if his way of doing it might not be the way the reader would prefer, it must be admitted to be fine and sensitive. Thus, Aeneas, a quiet, self-effacing man is not shown to be without human feelings (even though he subordinates them to his superior sense of duty). This comes out quite lyrically in the two line description225 of our hero catching a glimpse of his former lover in Hell. The poet describes their encounter thus: “And among them, her wound still fresh, Phoenician Dido wandered that great wood. The Trojan hero stood close to her there And in the gloom recognized her dim form As faint as the new moon a man sees, Or thinks he sees, through the evening’s haze. He broke into tears and spoke to her With tender love.” But the dramatic effect must be maintained and this is achieved by keeping the duty theme alive and the concomitant idea that must prevail over emotion. This is not easy, as Professor Lewis also states, in the aforementioned essay of his:226 “To follow the vocation is no happiness; but once it has been heard, there is no happiness for those who do not follow.” If this is super human, Virgil makes sure that he maintains a touch of humanity, and does so by making Aeneas tell her:227 “I swear by the stars, by the powers above, And by whatever faith lies in the depths below, It was not my choice to leave your land, my Queen.” It is, however, only “a touch.” For I have italicized the words “your land” since I think by putting things in this way Aeneas is 225 Book 6, lines 547–48. 226 A Preface to Paradise Lost (1942; 1961), p. 39. 227 Book 6, lines 551 ff.

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not admitting that he left her (but just her land), even though she always insisted that they had got “married” while they both sought refuge in a cave during a raging storm.228 This suggests a touch of disingenuousness; but if, indeed, it is, it is prompted by the reluctance to revisit a moment of weakness; in that sense, it offers further proof of humanity.

(b) The Cid Corneille’s characterization of the Cid (on which, because of lack of space, we shall focus ignoring for present purposes earlier representations of the story / myth229) was staged in Paris for the first time in 1636 in the converted indoor tennis-court known as le Théâtre du Marais. It met with instant popular success but also ran into trouble with the prevailing elite of literati who accused him of portraying on stage the story of a woman who married the man who killed her father. This, in their view, betrayed the prevailing Aristotelian distinction between what the French called “le vrai et le vraisemblable” which prevented such a theme being staged. As Peter Nurse states in his excellent introduction to the Blackwell French Texts:230 “Real life, as attested by history, is full of episodes which shock both our moral scruples and our sense of psychological probability; and since the artist’s first preoccupation should be to win our complete intellectual and emotional involvement in his subject, he must avoid the extraordinary, whatever its

228 Book 4, lines 189–197. 229 Guillén de Castro’s Las Mocedades del Cid, in time (1618) the closest predecessor to Corneille’s play, thus includes scenes such as the Cid’s encounter with a leper (who turns out to be none other than Saint Lazarus) and who is trapped in a swamp and is saved by the Cid, unconcerned by coming into physical contact with him. The intention to stress the Christian theme of charity and to connect it with chivalry is thus obvious. 230 Le Cid Pierre Corneille, Edited with an Introduction, Notes and Variants by Peter Nurse (1978; 1988), p. 10.

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historical justification, in favour of the universal. Corneille’s fault, in the eyes of his adversaries, is precisely his breach of the canon of vraisemblance.” This dispute, known as the “Querelle du Cid” grew to such an extent that Cardinal de Richelieu, who had recently helped establish the Académie Française and whose patron he had become, referred the matter to the Academicians to resolve. Their verdict, penned by Chapelain,231 published in 1637 under the heading Les Sentiments de l’Académie Française, condemned Corneille, forcing him, over the next decades, to make constant textual changes which complicate the interpretation of the play though, happily, in no way detract from its greatness. A key change, found in the 1682 edition at the end of the play, will be noted further down. In this classic drama (originally designated by Corneille as tragi-comédie) we find in Rodrigo de Bivar, known as El Cid, a flawless man. The unfortunate conflicts stem from the quarrel between two Spanish noblemen, Don Gomès (“the Count” and father of the heroine of the play, Chimène) and Don Diego (father of the Cid) over who is to be entrusted with the care of the crown prince. The first is expecting the honour but it goes to the second. In their ensuing conversation the “loser’s” frustration leads him to slap across the face of the winner of the prize (Rodrigo’s father), but the latter, being too old to react to the affront, asks his son to avenge him. This triggers a duel between the two noblemen which results in the death of Don Gomès, and this in turn sets off an endless set of conflicts between the young lovers,232 stemming from their conflicting senses of duty 231 Jean Chapelain (1595–1674), a cultured and linguistically talented French poet and confidant of Cardinal de Richelieu, who was used by him (and his successor Cardinal Mazarin) as a kind of arbiter homanorum literarum. It was in this capacity that he was appointed to head the committee of enquiry charged with the task of evaluating Corneille’s work. 232 That Cid and Chimène loved each other prior to this incident is obvious from Spanish materials of the mid-16th century on which Corneille drew heavily for his play. But this is not so in earlier versions, which differ from Corneille’s version here discussed.

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to honour and personal love and brings into the open the price of satisfying honour, which is internal torment.233 In this play honour seems to win, invariably, over love, and this, in a way, contributes to the flawless image of the Cid. Yet this is not quite so (a) because honour is a difficult word to define and (b) because of the different endings of the play (alluded to already). Let us look at these ideas in turn. (a) Honour. For the old governing classes of the noblesse d’epée (of Spain and France in the Middle Ages) this meant, that Don Gomès’s first loyalty is to his own glory linked as it is to his physical force. For instance, at one moment early on in the play he utters these words:234 “(…) (p)our conserver ma gloire et mon estime, Désobéir un peu n’est pas un si grand crime.” These lines must have had particular resonance at the time the play was written and staged since the audience was living through the last phases of a long process started by strong kings (such as Francis I and Henry IV) and was to be completed, thanks to the endless efforts of Cardinals de Richelieu and Mazarin who, finally, crushed all remaining aristocratic resistance after the suppression of the revolt known as the Fronde and lead to the royal absolutism of Louis XIV. A sense of honour, challenging royal authority, could thus not have been seen favourably by the emerging order which would have required honour to dictate loyalty to the King. But even Cid’s sense of honour appears, for a time, to be shaped by his love for Chimène and not by a sense of loyalty to his father. Thus, early on in the play235 he considers fighting the 233 Cf, for instance, how Rodrigo de Bivar (the Cid) responds to his father and the idea that he is expected to make more sacrifices (which he does, this time for the Crown of Spain): “Ne me dites plus rien; pour vous j’ai tout perdu: / Ce que je vous devais, je vous l’ai bien rendu”. 234 Lines 367–68 (“Sire to preserve the honour of my name, / To disobey a little’s no great crime.”) Henceforth all translation are by John Cairncross taken from the Penguin Classics edition (1975). 235 End of Act 1.

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duel to avenge his father but, at the same time, letting himself die thus “satisfying the need to avoid Chimène’s anger, while not forfeiting her respect.”236 But then his sense of honour is shaped by the profound instincts that govern the hero’s nature. “Rodrigo (…) is not a man of cool reason, calmly weighing the issues; on the contrary, he is a profoundly passionate figure and, from the depths of his being, there now erupts that same fierce impulse which was in evidence” earlier on in the play. It is thus “no longer enough to duel without the will to win: honneur and gloire demand a wholehearted commitment to victory and vengeance;” love and honour can no longer be harmonized, and this is how he puts it:237 “Respecter un amour dont mon âme égarée Voit la perte assurée? N’écoutons plus ce penser suborneur Qui ne sert qu’à ma peine. Allons, mon bras, du moins sauvons l’honneur, Puisqu’aussi bien il faut perdre Chimène.” Later in the play, Rodrigo will justify to Chimène his decision to put honour ahead of love by saying:238 “Je t’ai fait une offense et j’ai dû m’y porter Pour effacer ma honte et pour te mériter.” No wonder, and despite her own strong character, Chimène will later react by saying that:

236 The lines in quotation marks here, and further in this paragraph, are taken from Peter Nurse, op. cit. p. 44–45. 237 Lines 337–42 (“To cherish still a love my frantic soul / knows I am bound to lose! / I’ll close my ears to these insidious thoughts / which merely fan despair. / Come, save at least my honour, strong right arm, / Since after all Ximena’s loss is sure.” Lines 335–40). 238 Line 905–06 (“I have offended you; I had to strike / To cancel my disgrace and merit you.” Lines 895–96.

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“Il a sauvé la ville, il a servi son Roi? Et son bras valeureux n’est funestre qu’à moi.”239 Torn by this conflict of duties and often alone in trying to resolve these dilemmas, Rodrigo, like Aeneas, is thus revealed not only as brave but also as loyal and dutiful. This is stirring stuff – made all the more inspiring by Corneille’s language. But can the ordinary man identify with such sentiments? The purpose of these plays is to convince the audience to try and follow suit. I doubt whether the vast majority would be able to, which leaves the “flawless man” very much in isolation. (b) Love. It is revealing to note that Chapelain, who had played such a key role in condemning Corneille and forcing him in the end to change Chimène’s last grand speech about her love for Rodrigo, had himself composed (in 1635c.) a paper stressing the “havoc that love causes in society.” Thus in his Discours contre l’Amour,240 he wrote: “L’homme créé pour révérer les dieux, pour obéir aux lois, pour servir à la patrie, pour aider à son semblable et pour tirer profit des semences précieuses que le Ciel a jetées en son âme, n’a pas plutôt avalé le poison de l’Amour, que, par un effet magique, il perd sa première forme et devient non seulement autre qu’il n’était mais encore le contraire de ce qu’il était.” To me this is not just a text which has echoes of religious overtones; it is also the kind of advice which, if followed, leads one to build a character that is not human and not easily believable. In practical terms Corneille was thus forced to abandon the follow239 Lines 1161–62 (“He’s saved the city; / he has served his king, /And his brave arm was fatal but to me.” Lines 1151–52. 240 Quoted by O. Nadal, Le Sentiment de l’amour dans l’oeuvre de Pierre Corneille (1948), p. 108 (“Man created to revere God, to obey the laws, to serve his country and to aid his fellow human being, as well as to draw the benefits from important seeds planted in his soul, swallowed the poison of love as a result of magic and lost his original appearance, becoming not just something different to what he was but also the opposite.”).

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ing few lines from Chimène’s last great speech where she finally confesses her love for the Cid and accepts the King’s orders to marry him (after a decent interval has lapsed). That a tragedy could thus have a happy ending would not only coincide with Corneille’s original intentions; it would also give his heroes a truly human and (in my view) believable character. The original version (1637) thus contained the lines:241 “Mon amour a paru: je ne m’en puis dédire. Rodrigue a des vertus que je ne puis haïr, Et vous êtes mon Roi: je vous dois obéir.” This ending not only “saves face” for Chimène who is, we know, torn as much as Rodrigo between love for him and duty to the memory of her dead father, but also represents a marvelous poetic synthesis of duty to the king and human love. But running counter to the “official,” inhuman, and arid thesis about the meaninglessness of love, it was replaced in the 1682 edition242 by the more funereal lines where everything, as the third line suggests, is subordinated to the interests of the State: “Et quand de mon devoir vous voulez cet effort, Toute votre justice en est-elle d’accord? Si Rodrigue à l’État devient si nécessaire, De ce qu’il fait pour vous dois-je être le salaire, Et me livrer moi-même au reproche éternel, D’avoir trempé mes mains dans le sang paternel.” This ending, in my (inexpert) view not only removes the human element from the dénouement of the play; it also, consistent with my thesis argued throughout this book, makes justice ap-

241 Lines 1828–30 in the 1637 edition (“I admit it Sire; / I’ve said too much for it to be unsaid. / Rodrigo’s many virtues speak for him, /And when the King commands, I must obey.” Lines 1801–04 of the English rendering seems to have lost the important French words “mon amour a paru” which, I believe, loosely translated mean “my love has appeared”, i.e., never died). 242 Lines 1832–37.

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pear to be less satisfactory when influenced by ideas, religious or political, which are conceived in absolute terms and lose their human relativism.

(c) Flawed and human; flawless and wooden: a Russian twist to the debate In chapter two we noted the difficulties of making “good” believable and even appealing whereas in the preceding sub-sections of this chapter I suggested how, in my view, some great authors managed to make their heroes both grand and (just about) believable by rounding off the edges of their heroic attributes by addressing their human qualities as well. This last sub-section looks at a Russian variant of our theme and how the addition of the “human factor” can add to the appeal – certainly the literary appeal – of the characters they created even though this meant adding to or stressing their “bad” features. This, indeed, has been one of the themes of this book essay so far as it has suggested that giving evil human motives such as greed, ambition, lust (instead of love), single-mindedness, even selfishness, can make them interesting while making “good” self-consciously perfect can transform it into something austere and remote. Linking the characters’ beliefs and motives to those of their creators and their times also makes them real and appealing, for it adds to the reality. The Russian writers I wish to discuss do both of these things; but the way they approach this cluster of ideas strikes me as being archetypally Russian and without exact equivalents in Western European art. To the extent that this is true, it means that glancing at their works may help strengthen my point about the difficulties of painting true “good” in a manner which is both convincing and appealing, assuming it is commonly to be found. It is only in this limited sense that I invoke the vast literature that these two “characters” have given rise to, so I hope this limited aim may help excuse the otherwise crass summary of other people’s learning. As the title of the sub-heading suggests, Russian literature allowed humanity and environment to affect the goodness and —

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badness of its characters in two different ways: by creating the “superfluous man” – flawed and human – in the 19th century and then, in the 20th century, inventing the “positive hero,” designed as near-perfect and iconic as the times required but, from a literary point of view, wooden and formulaic. How “good” or “bad” these characters are we shall explore below; but before we do so I should mention at least one conscious attempt to create / describe true goodness. This is probably best found in Dostoyevsky’s Prince Myshkin in The Idiot.243 Yet his character does not fall easily into either of the two categories I discuss below. For he is not ambiguous but as close to the Christian ideal as we come in the literature which deals with the “superfluous man”. But neither is he wooden, standardized, or formulaic to comply with the demands that shaped the “positive hero” of later years. Nor does the fact that in the end he comes up as “cropper” place him in the former category, for this is not the result of a preplanned plot. For Dostoyevsky’s notes show us how he did not have the end of his novel in mind as he wrote. What happened was that by setting his perfect person in the imperfect real world, not some allegory, he comes out in the end all vulnerable and unfinished and humanly messy. So back to our two categories of Russian heroes. The term “superfluous man” was popularized in Turgenev’s Diary of a Superfluous Man but the character goes back to the earlier part of the 19th century when the Russian intelligentsia, i.e. those contributing to the development of spiritual values, tried to help acclimatize foreign ideas to their native soil. The “superfluous man” thus reflects the difficulties and dilemmas of the “Europeanisation of Russia,” accepted over the better part of the 18th century but opposed by the authorities from the advent in 1821 of Nicholas I to the Russian throne and the introduction of a fiercely authoritarian regime. The Russian writers were thus forced to seek new allies in their attempt to act as “intermediaries” on behalf of these new ideas. This task was further compli243 In this essay I also suggest that we find true goodness in Bazarov’s parents in Fathers and Sons. Indeed, the subtlety in which their simple but noble characters is painted is a literary tour de force.

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cated by another challenge, namely that presented to society by the growing pressure to end serfdom and the feudal system. This double challenge led the intelligentsia to transform itself into the vanguard of the emerging national life. But adapting to these two major challenges was not easy. As Professor Seeley has put it244 ”The Russian intelligentsia (…) was in the unhappy position of experiencing both sets of stresses simultaneously, since the impact of European culture became effective in Russia at the very time when the feudal order was beginning to break up.” These sets of opposites thus generated a clash between foreign and home, old and new cultures; and the writers, as well as the characters they created, reflect the multiple stresses that this need to acclimatize to the “new” generated. This led to creativity, originality, loneliness, unhappiness and, invariably, failure in the real world. In the literary world, however, it accounted for the creation of some of the greatest “characters” of Russian, indeed world, literature: good and bad, but also real, reflecting all these qualities and emotions. Indeed, as the 19th century progressed, they assume different forms. Seeley, whom I follow here, puts them, chronologically, into three groups. First came the dandies or aesthetes.245 The nucleus of the movement is “worship of the self.” Wit, superficiality, charm, inhibition of emotions, latent femininity, detachment, but also, in a moment of crisis, ultimate submission to convention. Are these “good” or “bad” features? Aleksandr Sergeyevich Pushkin’s Eugene Onegin is the icon of this character, in search of happiness which he destroys in others as well as himself. This, then, may not be a description of good or bad, but of “real” – more precisely, failure in the real world.

244 “The Heyday of the “Superfluous Man’ in Russia,” Slavonic and East European Review, vol. XXXI, no. 76, December, 1952, 93 ff. 245 Professor Seeley’s description of the early 19th century Russian aesthete / dandy could still be found in the Oxford environment that I knew. See “The Heyday of the “Superfluous Man” in Russia,” Slavonic and East European Review, vol. XXXI, no. 76, December 1952, 93, esp. 98 ff.

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The second form assumed by this superfluous man is arguably best found in Lermontov’s Pechorin.246 Here dandyism is replaced by a will to power; to control the wills and emotions of others, particularly women. It is combined with cruelty and a dose of fatalism. Pechorin however also has “a balanced and critical understanding of himself;” and, in keeping with the times (and the life of his creator), he “is a rebel, even though he may have no very clear idea of what he is rebelling against and has no idea at all of what he is rebelling for.”247 “Pechorin’s incapacity to love is matched by his craving to be loved,” and this makes him pursue power as a substitute for that which he cannot obtain. Professor Seeley thus concludes that248 “Pechorin represents the acme of the superfluous man of individualism, of vigour and bitterness, and perhaps of emotional inhibition. In the 1840’s the ‘superfluous man’ moves through the cerebration of Rudin and the quietism of the defeated towards historical and moral insignificance.” He is, of course, referring to Rudin, the great character of Turgenev’s On the Eve published in 1860 (and probably modeled largely on Turgenev himself and the famous 19th century revolutionary character Yevgeny Vassilyich Bakunin). In Rudin, however, we have a different model of the superfluous man, in keeping with Turgenev’s heroes who are no longer the products of a rich and idle society but the self-made, educated, representatives of the emerging new order. The aesthetic and the volitional are now taken over by the cerebral, even intellectual. But, in keeping with the common feature of superfluity and failure, Rudin is equally doomed, though this time because of his inability to leave behind him his university idealism and adapt to the real world. A later character, Bazarov, central to Turgenev’s masterpiece Fathers and Sons, fails because he is too much ahead of his time; some have 246 A Hero of Our Time, published in 1840, a year before the author’s untimely death in a duel. 247 Seeley, op. cit. pp. 105 ff. 248 Op. cit. p. 108.

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even described him as the first “positive hero,” others the first Bolshevik, who will, effectively, appear on the literary scene at the beginning of the 20th century. But to return to the “superfluous man.” What makes him and the literature interesting, indeed moving, is his humanity. This confused humanity, despite its excesses, seems to me to represent a goodness of sorts. To begin with, the characters stem from the minds of authors which are, to say the least, themselves deeply troubled. Thus, some are illegitimate (such as Aleksandr Ivanovich Herzen, the critic not discussed here); others lost their parents and were brought up by remote relatives (such as Lermontov); yet another grew up unhappy in others people’s households (Pushkin) or suffered from a strong-willed, brutal and frustrated mother (Turgenev); many had sickly (if not seriously ill) bodies (such as Dostoyevsky); most had clashes of some kind with the authorities. They also traveled to Western Europe, and on the whole not only admired it but also liked it; but like all Russians they also felt homesick when outside the country they so often criticized. These troubled authors produced troubled characters. As I said, they were not bad, or at least not entirely bad, since they had redeeming features. They were mostly lost or, as Sir Isaiah Berlin put it rather charmingly in his Romanes Lectures delivered in Oxford in 1970,249 these “superfluous men” became “the ancestor[s] of all the sympathetic, futile, ineffective talkers in Russian literature” – and one has to read Russian literature or meet Russian literati to appreciate how true this statement is. The contrast of these qualities made them ambiguous, capable of different interpretations, at times tragic. They were thus not only real but also interesting; and they were both because they depicted humans battling to survive in a changing environment. Many of the agonies that haunted them are now haunting non-Russians as well. In their complexity, I think they make us understand better the shades of good and evil; and to the extent

249 Reproduced as an introduction to the Penguin Classics edition of Turgenev’s Fathers and Sons (1975), p. 21.

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that they depict human life in its daily aspects, neither grand nor (in most cases) downright damnable, they not only show how politics and law underlie much of literature but also how in the depiction of the struggles of the ordinary man, the world of literature can come not only closer to that of law but also make its characters believable by making them as mixed, ambiguous, and confused as are the ones we find in law. In the opposite model of Russian literature – the “positive man” – we find quite a different trend, one which aims to “design” the ideal (later in the sense of “active”) man but ends up with a creation which, in literary terms, has not been seen a success, at any rate in the eyes of Western literary critics. Yet the importance of this movement, which begins in the mid 19th century with Nikolai Gavrilovich Chernyshevsky’s hero Rakhmetov in the novel What Now?, whose mixture of radical utilitarianism and heroic asceticism hugely appealed to both Populists and Marxists of the second half of the 19th century,250 reaches its turning point with Gorky’s Mother,251 the impact of which, within Russia, was substantial and long-lasting. To see some of the basic features of this movement one might as well begin by looking at Gorky’s plot outline:252 “Pavel Vlasov, born into an oppressed, working-class family, has a bitter drunkard of a father and a pious, submissive mother, who suffers endless beatings from her husband. Even as child Pavel stands up to his father. A factory accident brings the father to an early grave, and the young Pavel has to go out to work. Initially, he seems destined to repeat his father’s bad habits (he starts to drink, etc.). But Pavel escapes this fate when he is attracted to a small group of underground socialists; he stops drinking and begins to dress neatly. Gradually, his mother becomes curious about Pavel’s interests. He 250 From What is to be Done (published in 1863). 251 Written in 1907 but reworked six times until it settled in its final version in 1922 / 3. 252 Which I take from Professor Katerina Clark’s The Soviet Novel. History as Ritual (3rd ed. 2000).

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explains some of his new beliefs to her, and she is shocked by his sacrilege in presuming to go against God and the tsar. Then she meets his comrades and is attracted to them as people. When Pavel is imprisoned, her love for him leads her to help his comrades in his absence. This begins her gradual transformation from illiterate and pious housewife to inspired radical activist. As she changes, so does her sense of family change from one comprising merely Pavel and herself to embracing the entire revolutionary group. At a May Day demonstration Pavel bears the red banner and is arrested again. His mother picks up its remnants and carries them home. Pavel is sentenced to exile for his role as leader of the demonstration, but by then his mother has become a convinced and fearless revolutionary. The novel closes as she is being beaten to death for beliefs, defiant to the end.” The narrative, based on a true incident but embroidered and in part changed by Gorky, contains clearly the elements which will, within the next twenty years or so, become reinforced for this new type of novel and main character. Thus, the political movement that is central to the theme and inspires the “mother’s” conversion and gains her support assumes the role of “family,” supplanting members of a natural family. The novel also focuses on a relatively naïve person – the mother of Pavel –being converted and finally “seeing light.” In her death – which did not occur in the real life incident from which Gorky took his ideas – we also have a kind of martyrdom. At the same time the depiction of heroes is depersonalized, and this process, as experts in the field of Russian literature have meticulously shown, comes to be depicted through the increased use of a select group of adjectives and adverbs all meant to be describing seriousness, determination, consciousness, and dedication to the cause and so on. Experts on this type of emerging literature have fleshed out these points in their works, drawing particular attention to the emerging new vocabulary and the almost constantly repeated facial features (furrowed brow, shining eyes, stern countenance, good to his men etc etc.). All these thus become the accepted mechanics for depiction not only of image but also of character. —

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And the character features which are admired are things like dedication, sacrifice, loyalty, and hard work, giving one a clear clue as to how “good” is understood. There are two features in this development which I find interesting for my purposes. The first is to say that the mother marks the introduction of a new kind of secular hagiography from which generations of Russians will derive their staple intellectual diet and, in this sense, must be treated as an important attempt to fashion an image of good and useful in society. Hagiography is deliberately italicized, for though the urge felt by Russian authors to find / create role models can be found in the 19th century works, it is in the older hagiographical accounts of saints that, according to the experts, we find this tendency to depersonalize real lives and present them as an inspiring model of virtuous life. Thus, not for the first time, propaganda techniques developed by the Church will be adopted by the emerging communist regime. By the time this Socialist Realist movement (discussed in the next chapter) will be in full swing, the hero will thus be so “deindividualized that he could be transplanted wholesale from book to book, regardless of the subject matter”253 more or less like the portraits of saints found in Byzantine and Russian iconography. In literary terms all this comes, of course, at a price: two-dimensional characters set in a story which obeys to rather strong formulaic requirements, unconvincing plots and so on. But, it has at least managed to create an indigenous model of activity and energy which Goncharov, only fifty-odd years earlier (1859), could not give to a Russian in his masterpiece Oblomov and was forced instead to give to a character who, appropriately, has a German254 name: Stolz.255 This, of course, fits in well with the 253 Katerina Clark, The Soviet Novel. History as Ritual (3rd ed. 2000), pp. 47 ff. 254 Interestingly enough, the only strong man in Turgenev’s novels (also from the On the Eve) is Insarov, a Bulgarian and not a Russian. 255 Which in German means proud. The eponymous hero is distinguished by total passivity (but noble if absurd) ideas becoming a universal symbol of sloth. Oblomov, of course, is chronologically one of the last “superfluous men,” characteristic of the impoverished Russian gentry of the time and unable to move with his times. In this sense, he contrasts sharply with Turgenev’s other

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Europhile mania of the Russian intelligentsia of the 19th century so opposed by the Slavophiles. The second point worth noting for our purposes is the redefinition of good contained in these iconic figures. This conception of good, it must be noted, is not an organic growth of its society but is one imposed from above. Moreover, as we noted, “good” is no longer identified – as was by Dostoyevsky and, in later life, Tolstoy – in terms of such Christian beliefs as charity, meekness, or pity but identified with the interests of the common weal, promoting the type of qualities listed above. In this sense, it is part of the process of discovering a “new God” and fits well with Gorky’s own preoccupations (which he transfers to his character Pavel) and which, of course, will gradually develop into a Revolutionary creed. Yet it is more than that, since it is giving birth to a new literary school which is developing in tandem with the political rumblings that will lead to the explosion of 1917. Literature and art are thus not only reflecting life, not only redefining the type of “good” that society wishes to encourage, but also, in doing so, providing the political movement with further substrata on which to build its all-embracing ideology.

“superfluous man” Bazarov, who in the latter’s chef d’oeuvre Fathers and Sons (written only a few years later in 1861) is the educated man of humble origins who comes up a cropper because he is too much in a hurry to usher in the new era. The comparison is beautifully made by Ellen Chances, Conformity’s Children: An Approach to the Superfluous Man in Russian Literature (1978), pp. 63 ff and 81 ff. The possibility that two men may appear at the same time on the historical scene and one represent the world of yesterday and the other the world of tomorrow, and thus both end up wasted, can happen in real life, not only literature. Savonarola and Machiavelli are almost contemporaries who fall in this group.

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Plate 1

Satan Calling up his Legions (oil on canvas) by Fuessli, Henry (Fuessli, Johann Heinrich) (1741–1825) © Kunsthaus, Zurich, Switzerland / Photo © Held Collection / The Bridgeman Art Library. Henry or Heinrich Fuessli was born in Zurich in 1741 and originally studied for the priesthood. His expulsion, some twenty years later, from his native city, caused by political agitation, led him to Berlin and from there, at the insistence of the British Ambassador who spotted his artistic talent, to England where he embarked on his artistic career. His restless nature then led him to Italy where, for nearly ten years, he spent his time studying Italian artists, mainly Michelangelo, before returning to England where he exhibited and then taught at the Royal Academy, eventually becoming one of its curators. His work there, which exhibits all the characteristics of the German Romantic school, was often dark, visionary and even violent in character (The Nightmare is probably the best known) and has since given rise to many, at times extravagant, psychological interpretations about his character and frustrations. But it was also much appreciated by his contemporaries and when he died in 1825 he was accorded the singular honour of being buried in St Paul’s next to the resting place of the first President of the Academy. Fuessli’s depiction of Milton’s Satan addressing his troops epitomises the romantic vision of Satan held by most of the (English and French) romantic poets of the time, contrasting sharply with the hoofed and horned semi-human creature of mediaeval art. One of the best (and most terrifying) descriptions of the latter image can be found in Dante’s Inferno, depicting Lucifer chained in a lake of ice, flapping his wings which were the “size of sails”.

Plate 2

Adam and Eve banished from Paradise, c.1427 (fresco) (post restoration) by Masaccio, Tommaso (1401–28) © Brancacci Chapel, Santa Maria del Carmine, Florence, Italy / The Bridgeman Art Library. Tommaso Cassai, born in 1401 in the Tuscan province of Arezzo and died in Rome 1428, is widely considered to be the first great painter of the Italian renaissance. His life style, characterised by untidiness and utter disregard of all rules of personal cleanliness and hygiene, may also explain his nick name “Massacio”, a variant of Thomaso or “small Thom”, and meaning messy and clumsy. This life style, however, contrasts sharply with his style as an artist, his wonderful sense of colour, his skilful introduction of perspective (largely lacking in Italian paintings before his time), and the humanism of his work which coincides with the spreading of the neo-platonic ideas which were by now invading Italy as a result of a growing flow of erudite Byzantine émigrés. It represents a marked move away from the Gothic style that dominated painting until his time and had a marked influence on many who followed such as Michelangelo who studied his work carefully. The story of Adam and Eve fascinated artists of this period and was usually depicted in one of two forms. The first, usually painted on wood in diptyches, would be “static”, depicting Adam and Eve standing next to each other, invariably separated by a tree full of apples and a snake coiled round its trunk. The expulsion from Eden, on the other hand, understandably contained movement, required a better use of perspective, and, as this painting demonstrates clearly, depicted Eve in a downcast mood. Flying over the sinners, and casting them out of Eden, is the Archaengel Michael, the fiery sword waiving behind them, clad in a tunic painted in the beautiful rich pink colour which Masaccio often used in his paintings and frescoes.

Plate 3

Christ, detail from “The Last Judgement”, in the Sistine Chapel, (fresco). © Vatican Museums and Galleries, Vatican City, Italy / The Bridgeman Art Library. Michelangelo and Leonardo da Vinci were the two indisputable geniuses of the Renaissance. But whereas the latter frittered much of his talent away by producing drawings which reveal his craftsmanship and imaginative mind but led to nowhere, the former worked tirelessly producing sculptures, acting as an imaginative architect and urban re-designer, and even composing sonnets. Devoutly religious, Michelangelo was introverted, lonely, unclean, idiosyncratic and, according to more recent scholarship, not entirely straightforward in his economic dealings with his patrons. Yet his sense of beauty and creativity are abundantly displayed in his famous David, now housed in the Accademia of Florence. Even more impressive is the sepulchral tomb of Lorenzo and Giulio de’ Medici (later Pope Clement VII) in the Medici Chapel in Florence. Among his final works, his own self portrait at the age of eighty and the enigmatic but unfinished Rondanini Pieta, (bequeathed to his servant Antonio del Firenze) deserve special mention. Immortality, however, was finally bestowed by his paining of the ceiling of the Sistine Chapel and the Last Judgment, the largest single fresco in Rome, here reproduced only in part. The painting is divided into three zones, the upper depicting heaven, the middle showing those who have been judged, on the left those moving upwards to heaven while on the right are those heading for hell, while the bottom layer portrays the kingdom of Charon and the demons. The painting, despite its twisted nude figures and its occasional violence, caused an immediate sensation and, apparently, lead the Pope – Paul III – to fall on his knees and pray to God not to be judged for his sins. But contemporary theologians, imbued by the spirit of counter-reformation, complained for the excessive display of nudity (leading to a temporary “dressing up” of the bodies), Aretino claiming that they were more suitable in a “voluptuous bathroom but not the choir of the highest chapel”. Aretino is portrayed in the lower left part of this picture as Bartholomew holding his flayed skin (which is in fact a portrait of Michelangelo himself) while another critic, the Papal Master of Ceremonies Biagio da Cesena, is depicted as the King of the Underworld, with donkey’s ears. Casena complained for this irreverent depiction, prompting the Papal reply that had he been placed in Purgatory he (the Pope) might have been able to intercede in his favour but over hell he had no jurisdiction.

Plate 4

Don Juan and the Commander, c. 1905 by Ricketts, Charles (1866–1931) © Scottish National Gallery of Modern Art, Edinburgh, UK / The Bridgeman Art Library. Charles de Sousay Ricketts, born in Geneva to a French mother and an English father, grew up mainly in Italy and France and died in England in 1931, was a talented and versatile artist, designer, typographer, and illustrator of books including many of Oscar Wilde’s with whom he was on very friendly terms. In later life his topics became more serious, he became involved with sculpture and wrote on art. He also designed widely acclaimed sets for the plays of Wilde, Shaw and others. He was elected to the Royal Academy in 1928. The scene depicted here is the famous graveyard scene where the stone statue of the murdered Commendatore confronts his assassin and agrees to sup with him in return for the Don then dining with him. In dramatic and musical terms, the exchanges between the cold but sonorous voice of the Commendatore and the un-frightened (almost to the end) Don Giovanni provide the main drama of the last part of the opera which, after a brilliant start, sags somewhat in the middle, but regains its grandeur and aesthetic impact at the end. The painting captures wonderfully in its white tones the “coldness” of the statute in the moonlight; yet it also gives it life by emphasizing its outstretched and accusing hand pointing at the Don who is wind-swept and yet stands upright while the crouching figure of Leporello picks up the opera’s constant contrast between the bravery of the depraved Don and the spinelessness of his servant who, in the opening scene dares to dream of imitating his master’s dominant position.

Plate 5

Don Juan in Hell (gouache on paper) by Bison, Giuseppe Bernardino (1762–1844) © Museo Civico Rivoltello, Trieste, Italy /Alinari / The Bridgeman Art Library. Don Giovanni going to hell at the end of the eponymous opera has been variously interpreted by directors who, on the whole, have received little instruction as to how to stage the opera in terms of place, time, and character. For instance, there is no guidance as whether the Don has a home and, if so, where it is, though we do know that the main action takes place in Seville. One of the most imaginative interpretations of this final dilemma was given by Jonathan Miller in his production for the English National Opera where he represented hell as a place full of all the women the Don had seduced who “loomed out of the darkness as the obvious instruments of his doom.” The truth of the matter is that hell has been conceived in different ways by different artists so here we have reproduced Giuseppe Bernardino Bison’s gothic vision. Bison, an Italian painter, who was born in Palmanova in 1762 and died in Milan in 1844, offers us in this painting a typical example of his way of depicting historical scenes in imaginary settings in a whimsical or quasi-Gothic manner. His luminous painting style and brush strokes were in many ways influenced by Tiepolo, Guardi and Canaletto with whose studio he became closely associated during the long period of his life spent in Venice and add to the effect he clearly wishes to convey in this painting.

Plate 6

Faust and Mephistopheles, 1826–27 by Delacroix, (Ferdinand Victor) Eugene. (1798–1863). © Wallace Collection, London, UK / The Bridgeman Art Library. Delacroix (1798–1863) is France’s foremost artistic exponent of the Romantic Movement in opposition to the neoclassical school of his near contemporary David. Apprenticed in the workshop of Géricault he studied carefully and was influenced by the works of Rubens and the Venetian School (notably Veronese) before spending some time in England (1825) where he fell under the spell of various English painters, notably John Constable. Delacroix, who live and worked for most of his life in Paris’ small but charming square Furstenberg in the 6th arrondissement, combined powerful colours with romantic themes which were sometime treated with a degree of violence that shocked his contemporaries, The Death of Sardanapalos (1827) fall into this category. The romantic character of the Greek Revolution of 1821 attracted him twice, first evinced in his The Massacre of Chios (1824) and, later (1827) in his Greece Expiring on the Ruins of Messolonghi where, another romantic, Lord Byron, gave his youthful life in favour of a cause which looked lost but triumphed only a couple of years later with the creation of the modern Greek state. In Delacroix’s work romanticism was combined with exoticism after his visit to Morocco in 1832 which provided him with colourful images and material which he used to the end of his life. Such a romantically inclined artist was inevitable attracted by the work of Sir Walter Scott, Shakespeare (whose Hamlet and Horatio in the Graveyard, painted in 1829 now hangs in the Louvre) and of course Goethe whose Faust inspired 17 unusual and stimulating lithographs and the enclosed colourful and romanticised scene of the contract singed between Faust and Mephistopheles. Delacorix’s attachment to real or mythological scenes with a romantic overtone did not prevent him from painting some notable contemporaries of his such as Paganini, Chopin, and Georges Sand as well as undertaking at the behest of the French State decorative work on a large scale at the Palais de Luxembourg (The modern Senate) and the Palais de Bourbon.

Plate 7

Execution of the Defenders of Madrid, 3rd May, 1808, 1814 by Goya y Lucientes, Francisco Jose de (1746–1828) © Prado, Madrid, Spain / The Bridgeman Art Library. Goya born in Aragon in 1746 later moved to Zaragoza where he received his first painting lessons and then moved to Madrid where he studied with Anton Raphael Mengs, a painter popular with Spanish royalty. Attempts to get his works exhibited in the Spanish Royal Academy met with no success so, in 1776, he went to Italy, where, in Parma, he won second prize in a painting competition. Upon returning to Zaragoza he began working with Francisco Bayeu, later marrying his sister Josefa, (known as Pepa). With her help, his luck began to turn when he procured work with the Royal Tapestry Workshop which helped him gain access to various grandees and, eventually, the Royal family whose portraits he painted repeatedly, often cruelly depicting their ugliness or dementia. From about this time onwards, however, he himself was undergoing physical and mental changes as a result of a high fever which left him deaf and increasingly drove him to isolation, though others believe that it was the lead in his paints that poisoned him. The painting of merry themes thus began to be replaced by a series of disturbing pictures about human illness, dementia, and mental suffering, often achieving disturbing dimensions (as his painting of Cronus devouring his children shows) and giving rise to speculation about the state of his own mind. These features are clearly manifest in a series of eleven small pictures painted on tin, called the pictures of “Fantasy and Invention”. As French forces invaded Spain during the Peninsular War (1808–1814), the new Spanish court received him favourably and, initially, Goya showed some sympathy for the invaders. But he later changed positions and, at his request, the two related painting of The Charge of the Mamelukes and The Third of May 1808, were painted to mark the bravery of the resisting nation. The first, is an awkward and unattractive depiction of charging horses, but the second, depicting the cruelties of war, is undoubtedly one of his masterpieces. The restoration of the monarchy failed to bring Goya recognition so, after repeated peregrinations in France, back in Spain, and then back again France and died abroad at the age of 82. Goya’s work shows how illness, loneliness, suffering and genius can combine to influence artistic creation as well as be depicted by it.

Plate 8

Ecstasy of St. Theresa (marble) by Bernini, Giovanni Lorenzo (1598–1680) © Santa Maria della Vittoria, Rome, Italy / The Bridgeman Art Library. When German Protestantism, exploiting the moral weaknesses of the Catholic Church, nearly brought it to its knees during the first half of the 16th century, the “antithesis” was lucky enough to be expressed by some very able Popes along with some devoted Catholics who, in different ways, manifested the continuing vitality of the official church. Among these two of the most important were Spanish – Ignacio de Loyala, founder of the Jesuit movement (with its great scholastic tradition), and Saint Theresa of Avilla, born in 1515 in Avilla, in the very centre of Spain, who from a very early age showed signs of a head-strong character. In her youth she joined a nunnery, became seriously ill and, being unconscious for a prolonged period of time, would have been buried as dead but for her father’s refusal to give his permission. Progressively a mystic, seeking and apparently communing directly with Christ, prone to levitations (which provoked respect and discreet suggestions about her mental state), she reorganised the Carmelite movement and left a diverse and marked impression on the reformed church which canonized her in 1622 and made her a doctor of the Church in 1970 (a title shared by such eminent Fathers of the as Saint Augustine.) But the sculpture depicting her divine rupture in middle age, known as the Ecstasy of Saint Theresa, is captured in a unique way by Bernini who, as an individual, was anything but “good” or praiseworthy. To convey the levitation effect so effectively via the medium of marble is little short of an artistic as well as a technical miracle (achieved by creating an internal hollow in the statute). But to transform the religious ecstasy into one bearing all the marks of sexual orgasm is presumptuous, in character with the creator’s irreverent personality, but also intriguingly clever since no one quite knows what form the physical manifestation of a religious (as opposed to a sensual) ecstasy takes. Simon Schama, whose recent book Power of Art (2006) had not, alas, appeared when this work was being composed, puts it beautifully in chapter two where he states in his usual attractive style: “No one had ever translated carnal knowledge so daringly into marble, making it melt, writhe, braid, leaven the stone so that it defined its own density.”

Chapter Seven Controlling People’s Thoughts (a) Another form of evil? In the previous chapter we saw the Russian contribution to “good” through their attempts to create or describe social types which could act as models of behaviour. The possibility of different types or versions of “good” was thus made clear, each with advantages and drawbacks. Incidentally, I call this the “Russian contribution” since I think one can safely assert that Western literature never manifested to the extent that Russian literature did the desire to invent “models” or “typical characters” through which the artist could present a critique of his own society. Here, then, we turn to different types of evil; and, interestingly enough, the narrative picks up from where we left the history of Russian literary thought in the preceding chapter. Controlling or attempting to control other people’s thoughts is, one would think, in the eyes of most humans, a serious evil. Artists of all kinds would be the first to stress this fully; and this is what led many of them during the Stalin and immediate postStalin era to accept the risk of publishing their work abroad. The Russian-educated French critic Héléne Peltier256 described in this way Andrei Donatovich Siniavskii’s own feelings after he started publishing clandestinely his works abroad:257

256 Her full name became Héléne Peltier Zamoyska (through her marriage to a Polish national). She was the daughter of the French Naval Attaché in Moscow and a fellow student of Siniavskii at Moscow University in the 1940’s. It was she who smuggled his book out of Russia in 1956. 257 Quoted in Andrei Siniavskii, For Freedom of Imagination. Essays by the Imprisoned Soviet Critic on Pasternak, Yevtushenko, Ahhmatove, Robert Frost

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“The possibility of writing without constraint taught him that freedom of the conscience and of the word was not a luxury of an anarchist individualist, dangerous for the common good: (…) but a fundamental necessity of man and the condition of all individual social progress (…).” On reflection one must feel that controlling the mind of another person can be more oppressive than censuring the published end-product. This, incidentally, must also entail disagreeing with those legal colleagues who, in their writings, may have implied that injuries to the mind may be less serious than those to the body as part and parcel of justifying the Common law’s reluctance to treat mental injuries less generously than physical lacerations. Human beings thus need to be encouraged to develop their own thinking and imaginative mental processes not only in order to fulfill their own potential but also in the interests of the society to which they belong. Controlling or restricting such thinking is likely to affect adversely both interests – the individual and the general; and in the case of creative people it must be soul-destroying by denying them the outlet which their mental energy requires. Such control will only help reduce human beings into automata, removing one of those features which most distinguish them from animals. Yet advice, guidance, and education also help shape one’s thought; and these we welcome, not condemn. The task is thus to determine the parameters beyond which the “intervention” with human creativity, instead of being useful and productive, becomes unproductive and, even, destructive. This is the point at which we may have to start thinking of evil. How far one can go in controlling human creativity? This may depend not only on the form “control” or “guidance” take, but also the extent of the “interference” as well as the sanctions prescribed for disobedience. “This is what I would do if I were

and Other Subjects, translated and with an introduction by Laszlo Tikos and Murray Peppard (1971), p. XVII.

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in your position” is very different from “you can only do this and nothing else, and if you do not obey you will be punished.” The idea of proportionality may enter into such equations. For present purposes, just as important is to note the time when the control is being exercised. Many reasons can be given to explain why the problem of defining what, in this context, is permissible and what becomes bad, or even evil, is not easily resolved. Here, we shall mention some of the difficulties under two headings. Under the first heading one must immediately clarify that externalized thought can be and is restrained in many legitimate ways; and that is where the law comes to play an important role. For even the greatest advocates of freedom accept that there are occasions when limits should be placed on expression and speech. After all, no value, not even life, itself, is inviolable under all circumstances. Killing in the course of a legitimate war or in self-defence may be tolerated (even if disliked by most). The difficulty is to determine when restrictions to such free exercise of such rights can be allowed – a difficulty enormously enhanced by the fact that, in law, the ways in which controlling expression and speech are achieved differ widely depending on which legal notion is being invoked. For speech can be controlled in different ways depending upon whether it is treated as sedition, blasphemy, libel, or covered by hate speech related rules, race, and sex discrimination legislation. The fact that all these notions and legal concepts also happen to be understood differently by most legal systems does not make our task any easier. The rich variations one finds in the legal systems of the world, even among those – for instance the USA and Canada – which live in cultural and geographical proximity, clearly shows how difficult it is to establish objectively accepted limits of permissible interference of key human values, including thought and speech. A discussion of all these variants would call for a different title than the one given to these essays. For our purposes, it would also serve only a limited purpose if only one of these torts or crimes was chosen for closer treatment. The second difficulty is that the control – certainly on the legal plane – is often exercised over one’s expression of speech —

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or the externalized thought rather than over the internal process of thought-formation. To put it differently, more often than not it is the externalized thought which is controlled or punished by the legal system, less so the right to choose what one will think about, paint, or write. The lack of clear rules to control / prevent the latter kind of interference does not mean that it is any more acceptable; it merely suggests that, for various reasons (mostly practical), it is less regulated. But it is this type of “interference” we wish to discuss here. For it is the stifling of the inner thinking process which brings to a halt all originality and leads to the “sameness” and intellectual “sterility” that I dislike most and treat as a form of evil. Of course, the two “interferences” are inter-related. For, if what one writes or paints or composes is censured, banned, destroyed, or criminalized, the inner thinking process that created such works is also bound to be affected.258 Censorship, for instance, of the kind that society has in one way or another known since its earliest existence, targets the already externalized expression though, indirectly, it also affects the thought and the creator; and it can do so, broadly speaking, in two ways. Thus, it can stifle all further productivity along the banned lines.259 This may diminish the “creator’s” ability to influence the life of others through his externalized thoughts. This is because of the after-effects that censorship and punishment create. Alternatively, such repressive activity can force the creator to shift his talent to other fields of activity or adopt a new way of 258 The fatwa pronounced by the Iranian Ayatollahs on Sulman Rushdie for his Satanic Verses over fifteen years ago would appear to fall in this category. 259 What is said in the text, particularly true in Russia during the period of Stalinist repression, also applies to other countries. However, one cannot ignore the fact that examples from China, Chile, South Africa and, indeed, Russia itself, also provide us with examples of lone spirits who, in various ways, resisted this trend by choosing not to publish or by giving their creativity different outlets. The literary work of the dissenters, writing but not publishing, while still living within the borders of oppressive regimes have still to be evaluated in aesthetic terms; but I would be surprised to find among it the kind of literary masterpieces that were written when the human spirit was allowed some freedom. Different to this work is that of those about to die on which see the next note.

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externalizing his thoughts by means of allegories, coded writing, or symbolism, hoping to deceive the censors or, in some cases, postponing altogether the publication of his work. In extreme cases it can even kill creativity altogether.260 In an essay written in 1946, containing many apt and quotable sentences, George Orwell expressed this in the following manner:261 “…the imaginative writer is unfree when he has to falsify his subjective feelings, which from his point of view are facts. He may distort and caricature reality in order to make his meaning clearer, but he cannot misrepresent the scenery of his own mind: he cannot say with any conviction that he likes what he dislikes, or believes what he disbelieves. If he is forced to do so, the only result is that his creative faculties dry up. (…) Even a single taboo can have an all-round crippling effect upon the mind, because here is always the danger that any thought which is freely followed up may lead to the forbidden thought” One can only come to the conclusion that all of the above must be mentally exhausting for the “creator” – artist or writer – quite apart from being offensive to, if not destructive of, his own sense of dignity and self respect. These are serious obstacles to any discussion of the evil that lies behind such abusive conduct; but they must be overcome. For, as stated, the repressive rules which stifle thought, censure, 260 This, I think, is seen in the bulk of so-called Holocaust literature which often assumes the form of testimonials or dying declarations. From a historical and sociological point of view such writing constitutes an important “source of information”. From a linguistic point of view, such literature “can meaningfully and sensibly be read as [constituting] quasi legal documents.” But from an aesthetic point of view such works cannot, it seems to me, to be subjected to ordinary literary criticism; and they do suggest an (inevitable) drying out of creativity. For more details (and references to further literature) see Sidra Kranz Moshinsky. “Literature of the Holocaust: The Testimonial of the Witness” in The Happy Couple. Law and Literature (J. Neville Turner and Pamela Williams, eds.) (1994), pp. 157 ff. 261 “The Prevention of Literature” reprinted in Essays (Penguin reprint, 2000), p. 334.

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punish it or try to channel it in a particular direction before it has been formed and externalized is an evil. Though censorship may also, indirectly, have this inhibiting effect, the systematic brainwashing as to what should be expressed, described and praised in the Soviet Union of the Stalinist period seems to me to be in a category of its own. To make up for the scant and unsystematic material one must look elsewhere for evidence that supports my worries. To the extent that it exists, it is found in the realm of constitutional law and politics, the notion of the rule of law, or, at a more specific level, statutes regulating educational matters. But for the pathology in this type of control we have next to no legal rules in the way that we have for the cases where the already externalized thought is censured or punished. The relative paucity of legal rules on this topic does not, however, mean that no evil has been committed. For the way thought can be dictated or pushed towards the direction willed by the “controllers” we thus have to glean our information from psychiatry, history, and, more precisely, the history of literature and art. From these sources will come most of our information as to how this is done; how the human mind is conditioned and the human will can be broken. From these sources we shall also see the effects such “controlling” desires have on the individuals concerned as well as society as a whole. I have, as already stated, no doubt that this is a special kind of evil. The difficulties sketched in the preceding paragraphs have been laboured at some length because it is important to explain why, in this Chapter, we cannot follow the pattern of presentation of arguments adopted in the earlier ones, namely attempt a parallel presentation of the view which law and literature take on a particular point. To put it differently, this is an evil that we must understand only with some indirect help from law. A new solution thus had to be devised to link the discussion of this evil with those discussed earlier on. And the perennial problem of this long book– how to select a few examples sufficiently representative to justify wider propositions without turning this into an unmanageably large book – had to be addressed again. —

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From all these difficulties I could only offer two ways out. The first was to build my arguments around the Soviet literature that began to emerge from about 1927 onwards (when Stalin consolidated his power). The second was to look at, among others, one of George Orwell’s major works and see how literature has dealt with different aspects of the problem that concerns me. Both the approaches selected have led to the same result: control and perverse interference affect adversely intellectual creativity, make people unhappy, force them to abandon their profession, even makes them social outcasts, and for all these reasons should thus be considered as a species of evil. In my opinion, both approaches confirm a theme found in these essays (and elaborated in the concluding chapter). This is that literature reflects life and, in turn, this links us to politics, prevailing political ideology, and other “politically flavoured” movements. If these conclusions are correct, and the way of reaching them is not methodologically flawed, we must remain alert to the danger of such “control of our thought” re-appearing in our lives even if in its ferocity it can, probably, never match the Soviet years, at any rate not in the so-called “civilized” world. We shall return to this theme at the very end of the next and last chapter.

(b) Soviet literature from the early 1930s onwards The freedom enjoyed by Russian artists to create their literary characters and to endow them with good or evil features was widely enjoyed during the 19th century and variously put to use as each author (or, more generally, each artistic creator) tried to position himself within the context of the social, economic, and political reforms that affected, often shocked, the country during this period. Indeed, as we have already noted, the authors understanding and portraying of these issues came to perform an important social function by providing a forum for intellectual debate which the censor might keep out of the more traditional political arena. All this not only conferred upon Russian writers a social position and standing which seems to be have been unequalled by writers in other European countries; it also helped —

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attribute to them “prophetic” qualities and, to an extent, enabled them to act as mediators between established and emerging thinking. Some insights of how this influence was played out during the 19th century were given in the preceding chapter; but the main point here made was stressed most clearly in an open letter which Vissarion Grigoryevich Belinski addressed to Gogol on 15 July 1847. The critical section reads as follows:262 “Only in literature, in spite of our Tartar censorship, there is still some life and forward movement. This is why the writer’s calling enjoys such respect among us. (…) The public (…) sees in Russian writers its only leaders, defenders and saviours from dark autocracy, orthodoxy, and the national way of life (…).” The Russian Revolution was to bring most of these habits and traditions to an end; or almost. To be sure, the role of the writer in helping shape society was preserved; indeed after 1917, he was given the incongruous title of “engineer of souls,” presumably the materialistic term shaping the spiritual. In her Essay “Little Heroes and Big Deeds: Literature Responds to the First Five Year Plan,” Professor Katerina Clark lays great store on the forward leap of industrialization and collectivization, especially during the years 1928–1931. Society had to be remade. “However, the list of things to be changed included not just the terrain, but also man himself. In keeping with the dominant industrial imagery, social institutions were seen as a sort of assembly line for retooling a human product and turning out the new Soviet man.”263 262 Translated by Sir Isaiah Berlin and cited in his 1970 Romanes lectures at the University of Oxford (also available as an introduction to the Penguin Classics edition of Turgenev’s Fathers and Sons published in 1975. The text can be found on p. 7). 263 “Little Heroes and Big Deeds: Literature responds to the First Five-Year Plan” in Sheila Fitzpatrick (ed.), Cultural Revolution in Russia, 1928–1931 (1978), pp. 180, 192 – a most valuable collection of essays on the sociological and political foundations of the literature of this period.

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But thought, so intimately linked to one’s soul, was not shaped; it was tamed, indeed subdued.264 This was not only because the regime began, in earnest from about the end of the 1920’s – 1927 was the year that Stalin consolidated his power – to prosecute those whose work it did not approve; more importantly, from about that time onwards it progressively tried to make its authors and poets write about people who possessed the features which the new regime considered desirable. The era of the “little man” was about to be launched, eventually to be replaced from about the mid-1930’s with an era anxious to create heroes. The people of the Soviet Union – authors and masses who had a great impact on the formers’ work – were clearly struggling to find a new identity suitable to the new times and, in the process – only with rare exceptions – plunging Soviet literature to its nadir. The intention to create a “progressive,” “middlebrow,” or “popular” literature known as “Socialist Realism” was discussed at various informal meetings (some even attended by Josef Stalin) in the early 1930’s. However bad the effects of this initiative may have been, and the theme of this sub-section is that they were, the motives behind the idea were understandable. For, as Professor Clark has observed:265 “The leadership of the time wanted to generate a new literature to match the significance of the place they believed MarxismLeninism occupied in the evolution of human thought. All previous systems had produced a great literature, and it was time to show the world what Soviet communism could do.” Its political roots were thus understandable as its “realism” was not something that sprung suddenly out of nowhere – Gorky’s266 264 Indeed, knowledgeable authors attribute much of the “bullying” to the infamous “proletarian” literary association RAPP, which was particularly militant and active during the late 1920’s. For more details see Professor Sheila Fitzpatrick, “Cultural Revolution as Class War” in Sheila Fitzpatrick (ed.), Cultural Revolution in Russia, 1928–1931 (1978), pp. 8, 28 ff. 265 The Soviet Novel. History as Ritual (3rd ed. 2000), p. 36. 266 Gorky was the nom de plume of Aleksey Peskov and, in Russian, it stands for “bitter”.

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novel Mother, a work with a social significance and revolutionary tendencies published in 1907 / 8 and constantly revised by him until the mid-1920’s, was to be regarded as a model for this school. Why this turned out to be so important was alluded to in the previous Chapter. But, though this movement was not without roots of its own, it found a fertile soil to take new root in the revolutionary zeal of the times; not entirely novel in its approach (few ideas or movements seem to be entirely without antecedents in Russian history and culture), its ideological explanation and, even, justification, was now entering a new phase. For, from the late 1920’s onwards, the canons of invention and construction were no longer freely chosen (as, for instance, Gorky had done twenty-five or more years earlier); they were going to be enforced, indeed enforced with growing ferocity. This meant a huge shift in the underlying understandings. For one was no longer talking in terms of what was “good” or “bad” in an aesthetic sense; one was henceforth only allowed to have one – official – understanding of what was “good” and that was “evil”! As Czeslaw Milosz observed in his introduction to the English translation of Siniavskii’s On Socialist Realism,267 “unfortunately socrealism [Socialist Realism] is not merely a question of taste. It is a philosophy, too, and the cornerstone of official doctrine worked out in Stalin’s days. (…) The inferiority of poetry, novel, plays, and pictures produced in accordance with this formula cannot be avoided, since reality, which is quite disagreeable, has to be passed over in silence in the name of an ideal, in the name of ought to be.” The writers of the new era were thus asked – and eventually ordered – to be “optimistic,” to write “about socially relevant issues,” to find goodness in hard work and service to the nation, and to refrain from themes offensive to the new order such as ideas coloured by the values of systems in competition with Com-

267 University of California Press (1982 edition), p. 134.

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munism (such as Christianity). When one writer felt he needed more guidance, he was simply told to write about the “the truth.” Since this hardly took matters much further, the Writers’ Union produced special leaflets for its members and even arranged for “model” authors to go on lecture tours to instruct the interested.268 The capsule formula offered by one (feared) official – A. A. Zhdanow – in 1934 was that Socialist Realism should pursue “a combination of the most matter-of-fact everyday reality with the most heroic prospects.” How one combines verisimilitude with the art of fabricating myths is, of course, another and arguably insoluble problem. It would be too facile, however, to attribute this change of ideals, values and aims solely to the Communist Party’s growing grip over authors. Professor Evgeny Dobrenko has examined in great detail the interaction of author / reader in the emergence of the Socialist Realist texts and how the latter, in tune with the climate of the times, came to encourage the creation of such

268 A pamphlet produced in 1927 entitled What Kind of Book Does the Peasant Need?, discussed briefly in Evgeny Dobrenko’s The Making of the State Reader. Social and Aesthetic Contexts of the Reception of Soviet Literature (transl. by Jesse M. Savage, 1997), p. 136, provides more insights as to what is expected of an author. But as Dobrenko, op. cit. pp. 137 ff. points out – and we allude to briefly below – this was not only the result of party “imposition” on authors but also conditioned readers who came to expect these “virtues” from a “good” book. Dobrenko, who is one of those who has stressed the reader’s involvement in the emergence of this kind of literature and values, thus argues “that the ideal Soviet reader is in no way a passive object for external influence, but rather a demanding creative subject” (Dobrenko, op. cit. p. 292). This symbiosis seemed to peak in the 1930’s when “glorifications of the reader became a feature of almost all writers’ speeches (…)” (op. cit. p. 301). To the above ideas, however, one should add two cautionary observations. First, that the respective roles of author, literary critic, and reader constantly mutated during the Soviet period, so one cannot take what happened in, say, the early 1920’s or 1930’s as being always appropriate or relevant in the 1950’s or later. Secondly, this entire movement of “dictating” or “shaping” what should go or not go into a book, observed from a distance, illustrates how what is “good” or “bad” can be shaped, directly and indirectly, by political events and alter with the passage of time. We return to this theme in the early parts of the next Chapter since it is central to one of this book’s themes, viz. the relativity of the notions of good and bad.

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literature.269 Thus, it is not only the author who is increasingly expected to write in a certain manner; the same goes for “the literary critic who must learn to write for the masses, for the workers and the collective masses, learn to criticizes from the point of view of the present, from the point of view of the problems that disturb the masses, write so as to arm the masses with the ability to relate critically to works of art, (…).”270 But there were new elements in this movement; and both are crucial to our theme since they represent restrictions on freedom. The first was its foundation on the doctrine of mandatory “partymindedness” (partijnost), which drew heavily on an article published in 1905 by Lenin entitled “Party Organization and Party Literature.”271 This doctrine, with variations, apparently remained alive during the period of mild thaw introduced by Nikita Sergeyevvich Khruschev, who thus restated in 1957272 in one of his periodic boring pronouncements on the role of literature that the “highest social destiny of art and literature is to mobilize the people in the struggle for new advances in the building of Communism.”

269 The mass reader of the late 1920’s thus came very close to expecting from his literature the same “virtues” which officialdom required. For a list of his expectations see, for instance, Evgeny Dobrenko, The Making of the State Reader. Social and Aesthetic Contexts of the Reception of Soviet Literature (translated by Jesse M. Savage, 1997), pp. 126 ff. 270 Dobrenko, The Making of the State Reader Social and Aesthetic Contexts of the Reception of Soviet Literature (transl. by Jesse M. Savage, 1997), p. 92. 271 Vladimir Ilyich Lenin, Works, 3rd ed., vol. VIII, p. 387: “Literary works must become a component part of the work of the organized, planned, united, social democratic party.” (translated by Eugenie Markesinis). 272 “For a Close Link Between Literature and Art and the Life of the People,” Kommunist magazine, no. 12 (1957), reproduced in Siniavskii’s On Socialist Realism (University of California Press edition 1982), p. 164.

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Professor Katerina Clark was thus entirely right to observe that,273 “In the Soviet literature in the early thirties there occurred a major political-cum-institutional-cum-theoretical upheaval (…): a single, centralized writers’ organization was formed (the Writers Union) to which all writers were obliged to belong; literature was required to be responsive to the Soviet political platform and policies; and a single doctrine or method for the making of literature (Socialist Realism) was mandated to writers.” The second was that it gave a new and more sinister twist to the relationship between literary activity and official ideology. To quote Professor Clark again:274 “(…) (D)uring the old regime there were writers who shared the official ideology, and the government itself played a monitoring role in nineteenth century literature. The chief difference between the tsarist and Soviet situations is the fact that the Soviet government has not only censored the writers – has told them what they must not write; it has also told them what they must write.” This underscores the distinction made in this sub-section between controlling the externalized thought and influencing the unformed thought.275 The principle was bad, the ways it was en-

273 The Soviet Novel. History as Ritual (3rd ed. 2000), p. 30. 274 Op. cit. previous note, p. 252. 275 It can, of course, be argued that the non-externalised thought can remain free to think / imagine what it pleases. The point, however, is that the external repression, over a period of time, can make thoughts “dry out” or force artists to turn their creative minds to, arguably, less original occupations such as translations of the works of other authors. Pasternak’s work offers an example though it can, again, be counter-argued that the translations were, themselves, works of art. So, like most ideas this, too, can be confronted with a counter-idea though I hope my main argument comes clearly through in my text.

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forced were harsh; the contradictions in the guidelines given irreconcilable, and thus justly the subject-matter of subsequent sarcastic commentary.276

(c) The effects of control The effects of the Russian interference with artistic creativity were, as one might predict, unfortunate. One could argue that their bad effects took four forms (and by bad we must, again, repeat, that we are not talking in aesthetic terms but in terms of human freedom). First, many authors suffered various adverse consequences for remaining true to their calling and beliefs. Not a few of them thus endured exile and a smaller number were even executed or died from the hardships of prison life. All, including those who remained on the “right side” of the new order, must, in different ways, have suffered from this climate of supervision and terror which imposed such restrictive parameters on their creativity. Some, like Mikhail Afanasievich Bulgakov, spent their last years exploring the difficulties of “writing” while living in countries with a strong censorship regime. The theme is clear in Bulgakov’s last master piece – The Master and Margarita – and in the other major work of his dying years, Le Roman de monsieur de Molière, where (in an indirect and often allegorical manner) making a living as a writer in the time of Louis XIV – not easy, as we saw when discussing the troubles of Corneille – is explored. But these restrictions caused much anguish; for the true artistic

276 By Andrei Donatovich Siniavskii in On Socialist Realism (1959). The book was published abroad under the assumed name of Abraham Tertz but the advantages of anonymity were lost when it was traced back to him and he was put on trial in 1965 – the first trial based on the contents of a work – for his alleged hypocrisy in saying one thing in the works published in Russian under his real name and another in those published abroad under his pseudonym. Selected documents from the trial can be found in Leopold Labedz and Max Hayward (eds.), On Trial. The Case of Siniavskii (Tertz) and Daniel (Arzhak) (1967).

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mind does not easily tolerate regulatory regimes. Many examples can be given but I chose one since it illustrates my thesis perfectly. The fate reserved to Yevgeny Ivanovich Zamiatin’s work “We” (mentioned briefly below) is the example I need, for it shows how controlling the human mind by preventing it to speak in the way it wishes to is seen by artists and authors as a fate equal if not worse than death. It is and should be seen as an evil; and it was this evil treatment that befell him after his book appeared in translated form in the USA. Subsequently, a Czech edition appeared, and from there a truncated version in Russian was (apparently without his knowledge and permission) published by an émigré Russian magazine – Volya Rossi – appearing in Prague. This version reached Russia and unleashed an unprecedented ostracisation forcing a state of starvation. Like Bulgakov a few years later, Zamiatin, too, decided to write to Stalin pleading for permission to emigrate. Thanks to Gorky’s intercession (whose support he had always enjoyed) he was allowed to leave in 1931, ostensibly for reasons of health and for one year only, though in the event he remained exiled in Paris until his death in 1937. But it is the text of his letter to Stalin that best depicts the effect that this “positive” and “negative” censorship had and has on creative minds. Thus, this moving text opens with the phrase: “For me as a writer to be deprived of the opportunity to write is a sentence of death. (…) The content of anything I may have written is immaterial – my signature alone has become sufficient to brand the piece as criminal. A campaign of persecution, hitherto unequalled in Soviet literature, was organized, which even aroused comment in the foreign press; everything was done to preclude any chance of my continuing to work. Publishers, theatres, people who only yesterday had been my friends, started to be afraid of me. Libraries were forbidden to lend my books. (…) The printing of collected works (…) was stopped. (…) For Zamiatin the last doorway to the reader was closed; sentence of death had been passed on this author. (…) If I really am a criminal and deserve punish—

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ment it should, I think, be a slightly milder one than literary death.”277 Secondly, it is generally believed that the quality of the literary work produced during the period between the two Wars by those who conformed to the new aesthetic / political demands was not of the highest standard.278 The titles of many of the works, especially those which more or less coincide with the First Five-Year Plan, are “coloured by [the] fervor for industrialization [and] were usually expressed in terms of the factory model.”279 One author – Ilin – produces a book entitled The Great Conveyor Belt, while another – V. Ilenkov – wrote a novel called The Driving Axel. One work – Fyodor Vasilyevich Gladkov’s, entitled “Cement,” possibly says it all in its title (even though specialists in the field have argued that it may not be one of the worst examples of the genre and, indeed, it enjoyed huge success among popular readers280). In all these works “little men” – Gorky’s phrase – are the heroes; “gone was the age of Gogol and Chekhov, when little men were represented in literature as pathetic creatures.”281 Their human dignity was restored, though they “were valuable (…) not in themselves but as the bolts and whistles of the great train of society.”282 Other titles tell the same story. For instance the title The Victors (or The Victor) was used by at least three authors (Eduard Georgyevich Bagritski, Konstantin Mikhailovich Simonov, Evgeny Nikolayevich Chirikov), while Vladimir 277 The full text of the letter is reproduced in the introduction of the Penguin edition of 1977, p. 12. 278 From among the vast literature see Deming Brown, Soviet Literature since Stalin, C.U.P (1978); J. C. Vaughn, Soviet Socialist Realism: Origins and Theory. New York: St. Martin’s Press 1973. 279 Katerina Clark, “Little Heroes and Big Deeds: Literature Responds to the First Five-year Plan” in Sheila Fitzpatrick (ed.), Cultural Revolution in Russia, 1928–1931 (1978), pp. 189, 190. 280 Something which did not occur with his next novel Energy, published in 1932. 281 Katerina Clark, “Little Heroes and Big Deeds: Literature Responds to the First Five-year Plan” in Sheila Fitzpatrick (ed.), Cultural Revolution in Russia, 1928–1931 (1978), at p. 191. 282 Ibid.

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Vladimirovich Mayakovski (indisputably talented) expressed the required optimism with the title It is Well! and Gribachev opted for the mind-boggling title Spring in the Victory Collective Farm. Typically, of course, such novels would be set in an industrial context or a collective farm, and might be laced with some element of romance, even though this was always subordinated to the main political theme expounded through a highly didactic style. The result of such philosophy was the creation of works with formulaic structures, one-dimensional characters, and unconvincing plots or, as Siniavskii put it283 “Social realism starts from an ideal image to which adapts the living reality.” To be sure, some writers of the period who toed the party line284 conformed to these new requirements but also attained high standards (like Mikhail Aleksandrovich Sholokhov in his novel Virgin Soil Upturned285) while other maverick (but genuine) rebels like Mayakovski286 attained great intensity and honesty in their work. Specialists in Russian literature – certainly of Western origin – would, however, argue that this was no golden age for Russian literature even though the works themselves give us interesting information about the prevailing social and political conditions in post-revolutionary Russia.287 Thirdly, a fair number of the artists of the times who could not conform to this new revolutionary fervor went through vol283 On Social Realism (1972), p. 200. 284 Though this does not mean that the Party, itself, ever gave explicit instructions, most of them coming from writers associations or influential party authors. 285 Published in 1932. 286 Who Stalin had called “the most talented poet of our Soviet era.” Pasternak was to refer to this as being tantamount to a second death for Mayakovski. 287 Professor Katerina Clark’s The Soviet Novel. History as Literature (3rd ed. 2000), p. xii, adopts a less judgmental approach, attempting instead “a dynamic account of the novel’s evolution, seen in the general context of Soviet culture.” Her background account does not, I feel, in any way conflict with my more critical evaluation because of its restraining effects on human freedom.

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untary patches of literary inactivity. In the case of Pasternak, these instances became known as his “silent periods.” Thus, this author in particular, whose rising career as a poet was admired by Stalin, ceased writing and turned his hand to translating Shakespeare and Goethe, among others. His translations immediately attracted high praise; and the constant refining of his Russian rendering in some cases succeeded in giving to some Shakespearean characters – Hamlet most notably – an almost iconic status in Russia. One can guess, however, the resulting economic privations and, more importantly, the psychological frustration that this climate must have had on the kind of “sensitive” spirits that writers usually possess. In other instances, however, the inability to write in accordance with the new guidelines, coupled with the dispiriting effect of seeing one’s work rejected by the censor, led to an involuntary silence. In this group we find Bulgakov, posthumously destined to acquire a considerable reputation through his masterpiece The Master and Margarita. For instance his satirical novel Heart of a Dog, completed in 1925, was not published within the Soviet Union until 1987, forty-nine years after his death, which occurred in 1938. Though some of his works slipped the net, by the mid-1930’s he was in such a state of depression and penury that he took the unusual step of writing to Stalin and asking for permission to emigrate in order to make his living as a writer. Surprisingly, the dictator, who had much admired an earlier work of Bulgakov’s288 (which subsequently became a play289) telephoned him personally and refused permission to emigrate, but found him employment in the Moscow Arts Theatre, for which Bulgakov subsequently wrote a number of rather average plays. Another way round the command to write what officialdom approved was by trying to express one’s discordant ideas in allegorical or phantasmagoric terms which, one hoped, might conceal the real meaning from prying eyes. Even this, however, was not always deemed to be safe enough so that, for instance, 288 The White Guard, completed in 1924, published in 1966. 289 Under the new title The Days of the Turbins, which Stalin, apparently, saw many times.

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Bulgakov’s masterpiece The Master and Margarita, replete with allegory and hidden meanings, had to wait until after his death of the author before it was published.290 Siniavskii is yet another writer who had to comply with this “publish abroad pattern” while his correspondence with his wife, while serving his time in the Gulag, is also notable for the coded way in which they had to communicate about their developing thoughts. Those who returned to writing and refused to conform to official guidelines had to publish abroad. This process of concealment, however, coupled with the constant agony of being discovered, took a heavy toll on the health of many an author. Besides, anonymous publishing abroad meant no fame, no following, no direct exchange of ideas with fellow thinkers in one’s own country and, of course, no money. Authors may not have much in common with sportsmen and actors; but both dislike anonymity just as much. And even then the risks were high. Even where no prosecution was brought, the ostracism, internally, was complete, as is shown by the fate reserved to those writers whose work, though published abroad, somehow became known back in Russia. Zamiatin,291 referred to earlier on, offers one (of many) examples, though the vindictiveness of the authorities reached new heights after the end of the Second World War when all hopes for a thaw were frustrated and had to wait until the Khrushchev era and, more importantly, the era of glasnost and perestroika inaugurated by Mikhail Sergeyevich Gorbachev in the 1980’s. The fate reserved to Pasternak, whose Doctor Zivago was also published abroad in 1958 and earned him the Nobel Prize for Literature (which he was forced to renounce), is, if not one of the cruelest 290 In 1966 / 7, and thanks to the efforts of his wife, an incomplete version appeared in Moskva. The full version appeared abroad in 1973. 291 His anti-utopian fantasy “We” was first translated into English by Gregory Zilboorg and published in the USA in 1924. I have relied on the English edition first published by Jonathan Cape in 1970 by Bernard Guilbert Guerney and reprinted with an introduction by Michael Glenny by Penguin in 1972. The book describes life within a glass city where all human activity is surveyed and controlled by the authorities.

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acts of that literary regime, certainly one of the best known. But, at least, he never had to endure exile to Siberia, a fate reserved, nonetheless, to another great author, Aleksandr Isayevich Solzhenitsyn, who recorded the ghastly experience in many of his works.

(d) The way the pressure was applied The preceding sketch records some of the unfortunate effects of a regime’s attempt to subjugate its artists to the new order either by controlling their mind by telling them what to write or paint, or stop them from externalizing what they had already written or painted. How this pressure was applied to the rebel Soviet minds has been vividly described by Solzhenitsyn, among others, in a number of books.292 Though much of the information there given appears in the form of a novel or the story of a hypothetical individual, it really is autobiographical. Zamiatin’s letter to Stalin also shows how the “cutting off” from the real world of the untamable artist affected not only his livelihood but also his mind. In George Orwell’s work – his Animal Farm more so perhaps than in Nineteen Eighty-Four – we find a literary account of the way psychology is used to produce the state of subservience. However, one note of caution is called for. Here I shall focus only on Orwell, an author so rich in material and ideas that has, itself, already generated many books. But attention must again be drawn to Zamiatin’s work which can be seen as forerunner293 to two important English works, Aldous Huxley’s Brave New World and George Orwell’s Nineteen Eighty-Four. Both works 292 Most notably in his The First Circle though see, also, One Day in the Life of Ivan Denysovich. For a general account see also Evgenia Ginsburg’s fascinating account of the camps in Journey Into the World Wind (1989). 293 The reverse influence – English on Russian – must, however, also be noted since Zamiatin, who had worked in Newcastle upon Tyne during the earlier years of the First World War as a naval architect supervising the building of some Russian ice breakers was a fluent English speaker, a great admirer of H. G. Wells, and subsequently even wrote two essays about him in Russian, published in 1922 and 1924, respectively.

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thus show the same concern for man’s enslavement to a technological society,294 the latter also offering useful clues as to how the brainwashing is done and how horrible are its effects. Orwell’s Animal Farm, in my view the better of his two masterpieces,295 is, of course, too well known to need any summarizing. But among the multiple messages contained in the book proper, one must not forget to include Orwell’s castigation296 of the self-imposed literary censorship exercised by the English establishment on any views “challenging the prevailing orthodoxy.” This appears in the un-published preface to the book and, of course, mainly referred to the attempts made at the time to prevent the publication of Animal Farm lest it caused offence to Stalin and Soviet Russia, then still nominal allies with Great Britain. To me, however, the warning is still valid, just as the message applies to all establishments and not just the British. There are two aspects of this warning which, I believe, are relevant to the ideas found in this book. The first is that this censorship is “enforced by pressure groups” whose “vested interests” appear to be threatened by a writer’s thoughts or words. Now this may well mean, and for many centuries did mean, threatening the vested interests of the “establishment;” but nowadays, as I explain in the last subsection of the book, it can also be seen as including the kind of censorship imposed on thought that diverges from the tenets of political correctness. For here, too, there seem to me to be many things one cannot do or say lest one offends this new school of thought. The second and related point explains why this kind of voluntary (i.e., not necessarily legal) censorship works. In Orwell’s 294 It is, of course, interesting to note that almost at the same time, 1927 to be precise, Fritz Lang’s masterpiece film Metropolis appeared on the screen, depicting similar concerns. 295 The other, of course, being Nineteen Eighty-Four. 296 The proposed preface to the book was not included in the original publication but was subsequently found among his papers and published for the first time in The Times Literary Supplement of 15 September 1972 along with an introduction by his biographer, Professor Bernard Crick. I have been using the Penguin reprint of 2000, the words in quotation coming from p. 99.

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words, again taken from the unpublished preface,297 it is because of “[the] intellectual cowardice” which exists “in this country” [and every other country] which “is the worst enemy of a writer.” “Intellectual braveness,” the opposite of “intellectual cowardice,” is, I am sorry to say, not a widely found attribute of the academic world, at any rate in the non-scientific areas of learning with which I have some familiarity. So, if I am right in saying that any kind of attempt to impose a certain way of looking at things is likely to intimidate most writers into conformity, then this manner of controlling a scholar’s thinking is bound to be bad or, indeed, an evil. Again, this point re-emerges in my last subsection where I explain my reasons why I regard the political correctness movement as being potentially dangerous to academic freedom. The other major theme in Orwell’s Animal Farm that is relevant for my purposes is the way in which propaganda, spreading of lies, misinformation, hypocrisy and word manipulation can be used to shape people’s minds and control their thought. Though all this is depicted in Animal Farm in an allegorical manner it still does not fail to reveal that the animals which submitted themselves to the new order are less happy, less free, and amazingly (but also convincingly) susceptible to state propaganda. The account of Boxer’s death298 is one of the most moving scenes in literature; and “despite the animal disguise, we feel we are in a real world. This – this congeries of guzzling pigs, snapping dogs, and heroic horses – is what humanity is like; very good, very bad, very pitiable, very honourable.”299 Orwell, who thus wrote the piece expressly to criticize the excesses of the Stalin “thirties,” gives us some useful clues as to how the authors who lived during the period here discussed must have felt; and it must have been very depressing.

297 Op. cit. p. 98. 298 Op. cit. pp. 79 ff. 299 C. S. Lewis, “George Orwell” in Lesley Walmsley (ed.), Essay Collection. Literature, Philosophy and Short Stories (2000), pp. 155, 157.

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Chapter Eight Joining up the dots It is now time to try and wrap up the many ideas and rich material given in the text and notes in the preceding seven Chapters. For a variety of reasons it may be best to present these synthesizing thoughts under seven sub-headings related to the seven leitmotifs of this essay, and close with a postscript linked to the modern forms of the “evil” discussed in Chapter VII. It goes without saying that the complexity of the material considered in this book does not lend itself easily to statements in the form of proper “conclusions;” for conclusions are not what one finds at the end of a self-reflecting essay, but rather ideas for further rumination and, perhaps, one day the rudiments of a thesis about the differing and changing perceptions of the notions of good and evil. Nor is the presentation of such summarizing thoughts possible under separate water-tight headings; for it is through the judicious mixing of these different strands of thought that the creation of a successful whole can one day be attempted. So these are inter-related thoughts, and their presentation should be understood as an effort to “fly various kites” which others may subsequently wish to take over and try to fly even higher. The danger of these kites crashing to the ground is, however, also a possibility. For in the realm of inter-disciplinary speculation, where one has to perform the task of an expert in many fields covering many great and controversial works of art, such risks are inevitable. The risk becomes even greater when one realizes that the material produced on the literary “characters” here examined is truly colossal. To make matters worse the entire topic of law and literature has become, as already hinted and will be repeated at the end of this chapter, so politicized in the USA that it is difficult to develop a purely intellectual position that avoids

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being tainted by politically pre-conceived ideas. Discord and not accord is thus what one should expect from such a state of affairs, though that, too, has its benefits.

(a) First theme: the dependence of art and law on life Art and law depend entirely on life for their material. This is self-evident and need not be laboured further except, perhaps, to quote a more beautiful way of expressing this thought: “…the most perfect art is that which most fully mirrors man in all his infinite variety.”300 However, one might wish to go further and suggest that political life, in the sense of struggle for power, influence, and wealth, plays the prominent part, though more human or romantic emotions can provide important or useful contributions or deviations to the story told of the depicted human struggle.301 This, at any rate, is my own starting point, though I admit that others may find in religion the starting and ending point – even though one must at least consider the very real possibility that the two may not, after all, be that far apart given that religion (and the established church) have rarely concealed their desire to possess power, influence, and control over the lives of its flock.302 300 Oscar Wilde, The Critic as Artist (Harper Perennial edition, 1989), 1009, 1016. 301 In law, the life and ideas of Justice Holmes epitomize of perennial war, struggle and the Spencerian idea of the “survival of the fittest”. Chapters 3 and 4 of Professor Albert W. Alschuler’s monograph Law Without values. The Life, Work, and Legacy of Justice Holmes (2000), are replete with interesting quotations to this effect. 302 The medieval battles of the Papacy with almost all European lay authorities to retain jurisdiction over a large number of legal issues and disputes are legendary; and nourished much of the political theory of the time. The religiously inspired wars also form a substantial (the major?) part of all human disputes over the centuries, having also triggered off some of the greatest human atrocities in the name of “true faith.” Alas, they still do. So, seen from this angle, is religion really any different to what I understand as politics? Or can it also serve as a way that political manipulators can energize the masses? This is not the place to explore further this important issue; but I am happy simply

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Treating life (almost) as a shorthand for politics may strike some as down- playing excessively other great themes in life (religion, as already stated, being one of them). The role of religion – Christian religion in particular – in any debate over the meaning of “good” and “bad” is undoubtedly difficult to underestimate and certainly impossible to avoid altogether; indeed, the whole debate would be poorer if we did. Yet there is a point which must be stressed from the beginning. It is this. What happens now or happened in the past is one thing; how one relates it is another. The second may differ from the first (assuming we know it accurately) because of a large number of factors which affect the “describer’s” perceptions and outlook. The same goes for the person reading, hearing or seeing the “description.” His outlook may coincide with that of the describer’s; and he may thus be easily convinced by the latter’s interpretation. If it does not, his “take” will be different from that of the describer’s. Finally, both perceptions – that of the “describer” and that of the reader/hearer – may differ as to what actually happened. Agreement as to “what happened” or how is it going to be characterized (“good” or “bad”) may thus differ greatly as we move away from an event, its description, and the reception of the description. My point is that we must admit all this from the outset; and if we do, we then admit also what I call the “relativity” of truth and, in most cases at least, the relativity of our central ideas of “good” and “evil.” What I insist as being crucial to all such exercises is that there rarely is such a thing as only one version of the truth or, in this case, one verdict of what is “good” or “bad.” More often there are many. Only if combined, these differing views may lead one to see things more clearly, possibly more completely, for which read “accurately.” My starting point is thus a political one, which does not mean that I ignore the role that other factors / angles can have in (a) interpreting a play or a book or a work of art, and (b) to state my own view, namely that in many of these cases, religion provided the “banner” or “slogan” that facilitated massive involvement or hysteria, which in turn facilitated the execution of the underlying political master “plan”. Most Christian Churches cannot be exempt from this accusation.

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determining how one grades “good” or “evil;” all I do is merely give them second place. This is why I often rebel – as I write I can think of no other term – against the absolute tendency of religiously-inspired texts to tell me that there is only one kind of truth, one right or wrong, one and only one interpretation of a complex text. The Christian Religion must be conscious of this weakness, for otherwise how can one explain one of its main tenets: believe but do not enquire! On reflection, such a politically-oriented stance should not be as strange as it may sound, even to those who unlike Aristotle do not see in politics the supreme science in life. History and the writing of history, which have inspired art, are replete with such examples; and they have shaped our knowledge (and moral perceptions of events) according to the angle of observation adopted by the describer. This does not mean that this is inaccurate; but it does suggest that a different slant or interpretation may also be possible. A few – not many examples – may help put this in focus. For is it not true to argue that Thucydides, the failed politician, transferred his political thought into his Histories? And is it not this which also makes his text so different (and more complex to read and understand) than that of other ancient historians such as Herodotus? Is this not also true of other – most? – politicians who wrote history: Machiavelli, Guizot, de Tocqueville, Churchill and, most recently, Roy Jenkins (and his biography of Churchill)? Did not Goethe, too, dabble with politics, hold strong (negative) views about the French Revolution, as well as strong (positive) views about Napoleon, largely because he saw in him the man who brought it to an end? And were not Goethe’s views, towards France and its hitherto dominant classical literature, a cause for his inventing the German response in the form of “Storm and Stress”? Finally, was not Milton’s active but failed participation in politics the source of many a difficult line in his contradictory text[s]? One can, of course, explain (as we shall see further down) some of these contradictions by ascribing a meaning to them that depends upon the date when they were written. One can equally argue, along with some of his most learned commentators, that the ending of his political aspira—

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tions pushed his literary genius back into the folds of religion; and it is in this (and Milton’s Arminianism303) that we must seek to understand his true message. Those who see things through the eyes of religious dogma are thus bound to interpret works of art in a way that differs from those who find in politics the highest and most complex of sciences. This political element is, thus, undoubtedly an important (if not the most important) factor to be born in mind when reading the works we have looked at in this essay and trying to understand how it affects our understanding of the notions of “good” and “evil.” For, the “political element” – and I am using the words in their broadest sense – can create new notions of “good” (or appropriate) and “bad,” and do so both openly and subtly.304 As we shall see soon, it can also lead to a different interpretation of a literary work. So here, having warned my readers of my ways or errors, I shall stick to my guns and apply my lay / political / legal beliefs to my chosen texts and see if they can help reveal themes which apply to all of them. Indeed, the more I think of my subject in this light the more I feel inclined to argue that my predilection to discover and explore the underlying politics works well in the vast number of cases of human literature. Indeed, one could go further and employ this lay / political / legal angle not only to historical figures but also to many defining moments of history and then see how this affects our judgment 303 Jacobus Arminius, born in Utrecht in the Netherlands on October 10, 1560, studied theology under Theodore Bèze, for years John Calvin’s chief lieutenant and eventually successor as head of the Geneva Church. On his return to his country, he wrote a thesis opposing the doctrine of pre-destination, which had become a key notion for Calvinist and Presbyterians. 304 I am here thinking of the way Russian readers, especially in the 1920’s and 1930’s, came to play a direct role in fashioning the values their authors were meant to promote. To the extent that these differed from older ideas of what was “good” and “bad,” it shows how relative these notions are; and the extent to which they, too, decline with the passage of time also adds to my mistrust of these notions as being given a clear and immutable meaning. The Russian writer S. A Shwarts, writing in 1936, underscored the reader’s need to see in art something which is relevant to him and his time when he wrote “(T)he Soviet reader demands that art help him better understand reality” (cited by Dobrenko, The Making of the State Reader etc, at p. 292).

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about who has been “good” or “evil.” Let us for a moment look at just one because it is so obviously and closely linked to all four themes of this essay: religion, literature, law and politics and, of course, the notions of “good” and “bad.” Think, thus, of Pontius Pilate washing his hands over Jesus’s guilt or innocence and by delivering him to the High Priests indirectly condemning him to his death. Christians have always seen this as an act of a weak man which sent an innocent person to his death. Indeed, such evidence we have of the historical figure does not suggest that he was either strong, important, senior, or powerful.305 He was nothing more than an average administrator who caught the Emperor’s ear at a time when there was a vacancy in the governorship of Judea and, unexpectedly, found himself in the wrong place at the wrong time. Bulgakov, on the other hand, in his The Master and Margarita, saw this indecision as a sign of cowardice; and found in cowardice the greatest of sins, even though cowardice had never figured in religion’s top seven. These religious or literary interpretations may add interesting new facets and depth to this incident, assuming that it happened. This to me suggests that everything – or almost everything – in history and literature can be seen in different ways. These different approaches could also be taken to suggest that each of these interpretations may represent part of the truth (an idea to which we shall return later on but which obviously worries experts with a strong religious bent). In my view, however, at the end of the day it is difficult not to see in Pilate’s gesture a politician’s conscious decision not to take a risky decision. After I had written my text I came across the following statement of Prime Minister Tony Blair.306 Since it confirms, indeed because of his position reinforces, my interpretation I quote the relevant part in full. “It is possible to view Pilate as the archetypal politician, caught on the horns of an age-old dilemma. We know he did

305 See, for instance, Ann Wroe, Pontius Pilate (1999), passim. 306 Interview given to The Sunday Telegraph on 7 April 1996.

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wrong, yet his is the struggle between what is right and what is expedient that has occurred throughout history. The Munich Agreement of 1938 was a classic example of this, as were the debates surrounding the Great Reform Act of 1832 and the Corn Laws. And it is not always clear, even in retrospect, what is, in truth, right. Should we do what appears principled or what is politically expedient? Do you apply a utilitarian test of what is morally absolute? (...).” Indeed, why limit this “passing of the bucket” only to politicians? Many a judge with whom I have had long talks about his or her failure to touch upon in his or her judgment an important point have repeatedly told me that if a judge can find an easy way of disposing of the question before him he will do so and leave “the interesting issues” to be resolved by some other person on some different occasion. These reactions, to me, are human. To go further and see them as a sign of weakness, procrastination, cowardice, or even sin, is allowing the interpreter / artist to redefine “good” and “bad” in the light of the intellectual baggage he carries with him. The only difficulty about this interpretation is that it takes a “political animal” to see this slant since traditional religious thinking has done much to obscure it. Many may not like to admit this, but Pilate’s “indecision,” seen from a political and legal angle, is thus not only justifiable but also obvious. Such historical accounts as we have of the “trial of Jesus” – and none is a contemporary one – lend credence to the argument that Pilate “(…) (C)ommands our moral attention not because he was a bad man, but because he was so nearly a good man. One can imagine him agonizing, seeing that Jesus had done nothing wrong, and wishing to release him. Just as easily, however, one can envisage Pilate’s advisers telling him of the risk, warning him not to cause a riot or inflame Jewish opinion.” This is, indeed, a lawyer and politician speaking: the current British Prime Minister Tony Blair in the aforementioned interview —

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given to the Sunday Telegraph.307 But I find it more convincing than the account we get in the Gospels, especially that of Saint John (which is pure theology, not history) “(W)ishing to show the clash predicted by Jesus between the powers of darkness and the powers of light, between Truth and men, like Pilate, who would never grasp it. The Evangelists were not interested in characterizing the governor. The four Pilates of the Gospel trial differ mostly in what they do, not in what they are; and they differ in what they do because they react to the widely varying characters given to Jesus. The Pilate of Mark and Matthew is abrupt and practical because the Jesus of Mark and Matthew, the suffering servant, had nothing to say to this ruler who must brutalize him. The Pilate of John is both brimming with arrogance and touched by anxiety, because he is dealing with a Jesus who is patently king and patently God. The governor probably spoke very few of the words the evangelists, and John especially, gave him. It was what he symbolized that mattered.”308 Not everyone would, of course, agree with such an analysis. To me, however, it illustrates my argument that the view one forms about the “goodness” or “badness” of a particular conduct may depend on the angle its describer may choose to adopt. In fact, this story may be taken even further than what was said above. For one could argue, as Ann Wroe has done,309 that “(T)he gospel writers invented310 a vacillating Pilate only to make the Roman judge more sympathetic and the Jews worse. They had a reason for doing so, to make the vulnerable new religion more palatable to the empire. If they could not get round the fact of the Roman execution carried out by the Ro307 7 April 1996. 308 Ann Wroe, Pontius Pilate: The Biography of an Invented Man (1999), pp. 216–17. 309 Ibid. p. 217. 310 Italics added.

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man troops, they could at least make Pilate waver and wonder until his hand was forced by the Jews.” This, too, is arguable and interesting. And it is interesting because it shows that though the word “spin” did not exist at the beginning of the first millennium, the political need behind it has always been with us. But this was “spin” which, in the long run, backfired and cast Pilate (and the Romans) among the “baddies” – moral and religious reasoning triumphing over history, law and, perhaps, reality. The political background of the artist or writer (including this one) cannot thus be lightly left out of any attempt to understand his work or his perception of other people’s work or events and, of course, the meaning of “good” and “bad.” To put it differently – if more controversially – the “good” or “bad” is often (not always) in the eye of the beholder. Stating my own preferred optic is one thing; accepting that it has not (on the whole) prevailed – at least in the analysis of Milton’s works – is another. But it is worth stressing to the reader that this has tended to have been the case of commentators with a “literary” background. Why this is so is a matter of speculation. But since I have straddled both the world of politics and academe, I would be inclined to attribute this to the inability of academics and literary critics to appreciate fully how a politician’s mind finally subverts everything to a political calculation and expediency. Born and bred in a political family, operating in two of the most politically-minded countries in Europe – Italy and Greece – for many generations, I think I have some intuitive understanding of this way of thought and action; and it is this which makes me so skeptical about the (otherwise) so elegant interpretations offered by some commentators who have lived in and loved the protective environment of academe more than understood the more exposed world of politics into which they rarely venture. I have laboured this point at some length not only because I feel strongly that it can reveal one of the weaknesses of literary criticism which relies too heavily on textual analyses. But I have also striven to give my views on the above for I see this choice between an essentially political or religious interpretation dominate —

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much of the debate on Paradise Lost. It also helped damn Faust for much of the 19th century, especially in the eyes of those who were convinced to see in it the work of Antichrist. Thus, though authors have been seriously divided over which approach to take towards these works, they have had great difficulty in discovering how these differing views can also be brought closer together. For these reasons I feel uncomfortable when authors analyzing works such as Paradise Lost tell me that I must pay extra attention, indeed take it for granted, if something is coming from the mouth of God. For I am thus prevented from analyzing myself the (complex) text of the author and thus forced to accept another person’s analysis or set of values. Even if this was once true, it may no longer be convincing. In the context of Paradise Lost, the most significant attempt to provide a bridge between the opposing schools – that which saw in disobedience the source of all evil and that which discerned in Satan’s character a model of energy and magnificence311 – was, probably, made in 1967 by Professor Stanley Fish when the first edition of his seminal book Surprised by Sin saw the light of day.312 Thus, for Professor Fish, Milton deliberately speaks with many voices, or rather allows all views to be voiced in the poem, for in this way Milton wishes to force his reader to understand his own sinful nature and thus encourage him to engineer his own reformation. The method used is “not so much teaching as an intangling.” The advantage of this thesis was that it allowed everyone’s perspective to survive. But, there was a “but”. All this was, apparently, conceded in order to make it easier to understand the poem’s larger strategy. It is the italicized words which leave me worried. For if a larger strategy had to be found it would inevitably, it seems to me, push us back into one kind of

311 For a most recent attempt to “rehabilitate” Satan see Professor Henry Ansgar Kelly’s Satan, A Biography (CUP 2006). The Professor thus sees Satan still in Heaven, entrusted with the role of “accuser of mankind,” and acting as a kind of “government heavy, whose main job it is to test human beings and to accuse them of their misdeeds, but he is cynical and overzealous in performing his duties”. 312 Surprised by Sin. The Reader in Paradise Lost (2nd ed. 1997).

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interpretation rather than another: religious or political. And was this Milton’s strategy? Or Professor Fish’s strategy, discovered with great learning, presented with great force, but possible only because the text was so amenable to endless interpretations? What worries me most is not Professor Fish’s attempt to use every sentence in Milton’s verse to suggest that it undermines every compliment the poet has already paid to his villains,313 for this has been done before and, in my opinion, found wanting. For the probative value of these “authorial intrusions” is not really stronger than the preceding complimentary lines.314 The real reason – and it is based on personal beliefs of course as, I think, is Professor Fish’s – is because the Professor’s interpretations are so obviously religious. Thus, though he starts by allowing both sides – the pro- and anti-Satan – to have their say, in the end he cannot accept, as other Miltonists of distinction have done,315 that the poem speaks with many voices and can thus provide support for almost any thesis one wishes to advance. Fish’s every line thus oozes with religious content, and tempts one to say of him what Macaulay said of Milton: “the work of Fish cannot be comprehended or fully enjoyed unless the mind of the reader cooperates with that of the writer.” 313 For instance I, 125–6 trying – I would say – to undermine the preceding strong portrayal of Satan. 314 I thus have much sympathy with Professor A. J. A. Waldock’s Paradise Lost and its Critics (1947), pp. 77–78 when he writes in response to Milton’s comment that Satan spoke with “deep despair” the following: “Has there been much despair in what we have just been listening to? The speech [Satan’s] would almost seem to be incompatible with that. To accept Milton’s comment here (…) as if it had a validity equal to that of the speech itself is surely very naïve critical procedure (…) in any work of imaginative literature at all it is the demonstration, by the very nature of the case, that has the higher validity; an allegation can possess no comparable authority. Of course, they should agree; but of they do not then the demonstration must carry the day.” Professor Fish’s response to this can be found on pp. 5 ff of his Surprised by Sin. The Reader in Paradise Lost (1997). 315 I read in this sense the message of some complex and sophisticated writers such as Lucy Newlyn, Paradise Lost and the Romantic Reader (OUP 1993) and Michael Lieb, “Two of Far Nobler Shape: Reading the Paradisal Text,” in Diana Benet and Michael Lieb (eds.), Literary Milton: Text, Pretext, Context (1994), pp. 132 ff.

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The reason why I am left doubting Professor Fish’s attempt to use every sentence in Milton’s verse to suggest that it undermines every compliment the poet has paid to his villains is not so much the fact that the probative value of the “authorial disclaimer” is really stronger than the preceding complimentary lines but that I am told that I have to see it in this way. And I am worried further by the author’s overt and constant recourse to religion as a way of unlocking the mysteries of the poem. This must stem from his conviction that religion holds the clue to its understanding – perhaps it did, but does it still? – which leads him to discover a new way of solving the disputes of the past by discovering a “larger strategy” to the play. As I read Professor Fish, his need to discover a larger strategy is caused precisely by the open-endedness of the wording of the poem. Milton, in the Professor’s words, can simply not be seen to be “a good-hearted celebrator of difference.”316 For this existence of many “truths” is, obviously, troubling to Professor Fish, who is thus forced to look for a single “guiding” theme. This is a religious stand, a Christian one at that; and not very compatible with the kind of societies we nowadays live in, which are based on “difference” and “diversity.” Thus, Professor Fish has to find a unifying theme; and he does so in “a universe presided over by a generative and omniscient deity.” Not to do this would mean being left with a “universe presided over by chance, indeterminacy, opportunistic creation, and the accidents of time.”317 As stated, I see this stance perfectly in tune with a religious faith that is linked to the idea that Milton is “committed to building a holy society” – a thesis which Professor Fish whole-heartedly applauds.318 But crucial, I think, is the fear already alluded to above, that if a single guiding theme is not found we shall fall into a “universe presided over by chance and indeterminacy.”319 This dilemma, however, which so worries Professor Fish, is not one which non-theists, but pantheists like Albert Einstein 316 317 318 319

Preface to the 2nd ed., p. xli. Op. cit. preface to the 2nd ed., p. xlv. Op. cit. p. lxv. Ibid.

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and other great scientists of our era would accept as being real.320 For their theory of the Cosmos is anything but random and the law of science anything but in-determinate, even if they do not give, as theists do, to their order of the universe an anthropomorphic image of a God responding to prayer, performing miracles, and punishing sinners. My point thus is that if this is the main reason that leads Professor Fish to construct a new interpretation of the poem as a means of confronting us with all the sins which we have and letting us find our own salvation, I think it will never have an appeal to anyone who does not see himself already as a believing (and not enquiring) Christian.321 And yet, my thesis is that the text as well as its language have such a wider appeal because it describes life, the struggle for power, ambition and defeat (through over-reaching), the value of rhetoric and logic in argument, and much more;321a and all that under the guise of a famous religious theme. To over-play this theme restricts the appeal of that great poem in terms of audience and in terms of time, and subordinates the analysis of the other features which I have just mentioned to the rigours of religious hermeneutics. I find it too beautiful to do that to it; and in the multiplicity of voices found in it, I find a way of trying to give to it not just a contemporary but also wider significance. That this may not have been what Milton had in mind bothers me less. For, as I said at the beginning of this subsection, discovering the contemporary meaning of a great work of art is just as valid as finding the meaning its creator had for it 320 On which see, inter alia, the concisely expressed views of Professor Richard Dawkins, Science and Faith, The Seventh Athenaeum Lecture (2004). 321 My impression is that Professor Fish underestimates throughout his analysis the tendency of modern readers to be critical. For instance, referring to Waldock’s doubts about the probative weight of the “authorial interventions,” alluded to earlier on and intended to minimize an effective speech by a devil, he accepts “a modern eagerness to put that voice on trial” whereas Milton would have assumed otherwise (op. cit. at p. 47). The point may be a minor one; yet to me it shows that modern educated readers are less likely to accept statements simply because they appear to have divine origins. 321a Themes, apparently, explored by Joseph Anthony Wittreich in Why Milton Matters: A New Preface to his Writings (2007), a book which appeared too late for proper consideration in this work.

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(assuming he had one and only one meaning for it).322 Indeed, this is precisely what makes a great work eternal. Thus, finding the meaning that a work of art has for its contemporary reader may be just as relevant and, indeed, lead us to re-evaluate older views of what (or who) is “good” or “bad.”323 This danger to over-lay an interpretation of a literary work with Christian meanings and symbolism is real and also condemnable in so far as it can lead to unconvincing or only partially convincing analyses. But it can be encountered even in other works of art and with the same effect: limiting their appeal and significance in terms of geographical space, ethnicity, or religion. To that extent it diminishes, not maintains, the “eternal” significance of an artistic masterpiece, and should thus be attempted, if at all, with great caution. Many an illustration could be given, but one will suffice since in many ways I think it fits in my overall thesis that “evil” is a relative term. It is, of course, additional to the examples I gave earlier on about Pontius Pilate (history) and Don Giovanni (music) though this time it comes from the world of pictorial art. The reader, however, must note that what is portrayed in the picture in question is an authentic historical event.324 I am thinking here of Francisco Goya’s masterpiece known as “The Third of May,” now in the Prado Museum. It depicts in a nightmarish manner the execution of some Madrilenos who re322 Though even this may be more easily said than done. For instance, in trying to find Milton’s religious beliefs are we meant to limit our search to the work we are analyzing? Or should we try to devise it from the totality of his work which, as is well known, contains ideas which are not always compatible with accepted Christian doctrine? So finding the one “truth” is not easy even if the starting point is religion and not politics, i. e., real life. 323 Thus compare the earlier points made in Chapter VII about Soviet Realism, stressing, in note 268, above, the reader’s need to link the work of art with the reality that surrounds him. I think this sentiment is wide-spread and timeless. 324 It is, in other words, another example of art reflecting / interpreting history and giving rise to differing views about “good” and “evil” as I explain in the text below. The artist’s attitude towards the portrayed events may have changed from the time they took place and the time he painted the picture, adding to the complexity of discovering his understanding of good and bad.

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belled in the Puerto del Sol against Napoleon’s invading forces in 1808. It is a painting, like all the works we have discussed here, that captures the anxieties and dilemmas of the artist himself, for, initially, he was favourable to the French Revolution, not particularly admiring of his Spanish masters, and also in need of artistic patronage. So he sided with the invaders. But the riots which took place in early May in Madrid and the brutality with which they were suppressed by General Murat’s troops, tipped the scales in the artist’s mind. The painting of the executions that randomly took place on the 3rd of May was thus born. It could be seen not just as a great work of art, but also as a superb example of contemporary journalism.325 It is also a depiction of evil: evil at various levels and seen from various angles, as so often stressed in this book. For we have the murder of probably innocent citizens; and that is a sin in itself; but we also have here the political dimension: the invading force suppressing local freedoms; and that, too, is evil. And then we have the artistic effect, with all its manifold implications, of the innocent man dying in the light which is projected upwards from the lantern that lies at the executioners’ feet, with all the agony depicted on his face, while the executing soldiers are grey, painted without any real features showing on their turned and thus half-hidden faces since they are simply the instruments of oppression, not the evil itself which we are left to imagine on the basis of our political understanding of the events.326 And last but by no means least the executed figure is about to die holding his hands stretched out as if he, too, like Jesus, is on the cross, with the first executioner’s bayonet – if extended – aimed to penetrate the innocent man’s body at about the height where Christ’s liver was pierced by the “anonymous” Roman soldier.

325 Except for the fact that it was painted six years after the events took place at Goya’s offer to commemorate the “glorious insurrection”. 326 Though recall the artist’s original, if brief, sympathy was with the invading French, which suggests that who was “good” and who was “bad” (in the eyes of the artist) could have easily be seen differently when the events occurred and when the painting was finally executed.

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Does it take much imagination to begin seeing in the painting aspects of Christian symbolism? Would it be wrong to do so, given the time, the artist and, above all, the strong impact that religion had on Spain for most of its history? Of course, the answer is “no;” and Goya makes sure we do not miss this symbolism by placing next to the dying man a monk destined to act as a comforter – religion always by our side at our moment of need – but also as the next victim. Yet by taking the religious symbolism so far we are, I think, limiting the significance of the picture almost as we if were saying to a contemporary Chinese not to see it a fore-runner of Tiananmen Square. Or allow an insurgent Palestinian hit by a rocket fired by an Israeli helicopter the possibility to find his own interpretation in this picture. For who is the invader? Who is the “evil doer”? How does one decide these questions, other than by drawing on his reservoir of personal experiences and this will, in such cases, translate into his own political experiences? Classic art is eternal because it transcends personal, religious, and ethnic biases, and allows us to admire both its pictorial beauty but also to attempt our own understanding of what is being depicted, who is committing the evil, and who stands for the good, and what, exactly, does the evil consist of, and do all this against the omnipresent factor of history and politics which, ultimately, shapes so much of our understanding of the world around us. So we are back – or should I say we should come back – to what I would call a more political and realistic rather than religious interpretation of works of art and their treatment of “good” and “evil.” This does not mean that others will accept such an approach; but it is the one with which I intend here to proceed and test how it works with the works of art examined in this book. And though I am not sure that it is the “correct” one, I feel confident that it is arguable. Thus, in my view the approach I favour certainly applies to Virgil, whose marvelous art does not conceal his political moralizing. For Virgil is not just giving a lesson to his contemporaries; he is completely shaping the character of his protagonist to suit the model he wishes to impose on them. Odysseus – “polytropos” in Homer’s untranslatable word – is not a model in his eyes; nor is —

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the temperamental Achilles; but Aeneas, with all his self-effacing modesty, his sense of duty, and his piety – the last word stressed even when the hero is not acting as a “human” – is the “citizen” possessed of the virtues Virgil’s (troubled) times required. The same can be said of the much later Russian writers, whose works we have glanced at briefly, and who ultimately make their characters echo the political concerns, frustrations, and intellectual aspirations of their times. Indeed, this is true even of those who, like Turgenev, tried to maintain a political ambivalence in their work. For though he perceived the humanity of the emancipation cause in the Russia of his time, Turgenev also remained fearful of the ruthlessness with which the radicals were pursuing it. To echo successfully in their works the cross-currents of their times required the Russian writers of that period to design characters which were “ambiguous” and thus, more often than not, made them depart from models of pure “goodness” or “badness” and made them more “mixed” and nuanced. Christian though these authors were, their works and “characters” were more often than not shaped by the political and cultural turmoils of their times than Christian meekness, charity, and a sense of religious devotion. So can one summarise this sub-section? Not easily is the answer (because of the dangers that accompany generalisations); but it is worth attempting nonetheless, since it deals with one of this book’s main theses. Homer, Milton, Mozart, Goethe, Turgenev, Goya, Melville and, even, Choderlos de Laclos have created works of art which lend themselves to multiple interpretations. To differing degrees, theirs are also works whose description of good and evil has been understood and evaluated differently over the centuries. This is true even of de Laclos’s Les Liaisons Dangereuses which I have added deliberately to this selective list even though I have not discussed it in detail in this book. For his characters, the Vicomte de Valmont and, especially, the Marquise de Merteuil, have for nearly two centuries now have been seen as archetypes of evil. Yet by the 1970’s Laclos became a prescribed author for French University students, his own life, as seen though his correspondence, has placed him under a new and quite favourable light, —

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and even his characters and his book have given rise to considerable and not always un-favourable re-evaluation.327 If this can happen to characters such as these and a book once banned “for outrage to public morality”328 what can be said about the conception of good and evil in other works of art such as Paradise Lost or Faust? Reflecting on such attitudes not only makes one contemplate the changing nature of good and evil; it makes one – or, in my view, should make one – admire the dexterity of the artistic creators who can in-plant in their works the seeds for such multiple interpretations. For sketching the main characters as ambiguous or multi-faceted or, even, deliberately mysterious,329 their artistic creator – writer, composer or painter – is leaving them open to future interpretation and thus ensuring his “survival” as well as the work’s status as a classic. Any attempt to give the work in question a single interpretation, worse still to assume that we can discover the creator’s own interpretation, would result in its impoverishment and, eventual, demise. Talking of Melville’s posthumously published (and not quite finished) work Billy Budd, Sailor, the editors of the text thus correctly comment on the critics “inability…to agree upon the “meaning” [of the book] and conclude that this “should be taken for a sign that it is indeed a literary masterpiece.” This is a theme which, I think, runs through all great works of art. Equally fatal, probably worse, would be the desire to base such attempts on the dictates of religion or morality or political ideas prevalent at a particular moment in the historical continuum. For good and bad are part of life; and life, in most (but not all) cases deals with ambiguous, complex, incomprehensible if not indecent human beings who, because of other redeeming 327 For a summary of all this (and supporting further references), see Professor David Coward’s introduction to the Oxford World Classics edition of 1995, pp. xxxiii ff. 328 By a Paris court in 1823. A few years later Flaubert’s Madame Bovary and Baudelaire’s Les Fleurs du mal were also the subject of criminal prosecutions. 329 In the opening act Don Giovanni himself tells us that “we shall never really know who he is”. In my view that does not refer to his identity, concealed because of the darkness of the scene, but to his true character.

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factors, cannot easily be slotted into the pigeonholes of good or bad. The truth thus is that life – as it unfolds daily and is depicted in art in all its forms – is much more nuanced and complex than that.

(b) Second theme: the connection of art and law The link between life (and politics) on the one hand, and art and law on the other, is undeniable.330 The preceding sub-section suggests this, bringing together ideas put forward earlier in my text. But the connecting links between art (and literature in particular) and law are also real – though inadequately explored (at any rate by modern, especially non-American lawyers). Even less un-explored is the understanding that each of these branches of human learning have of the notions of “good” and “evil”. Why European colleagues have neglected such inter-disciplinary links is uncertain; perhaps, the traditional emphasis on doctrinal research may be partly to blame.331 This is no place to discuss the differences in the law curriculum in Europe and the USA for it is a subject in itself and it will have to wait for another occasion. Yet, whatever the reason, the fact is that law penetrates art in all sorts of ways, creating its own special type of symbiosis with this form of intellectual activity. To the untrained eye this may not always be that obvious; but it is true nonetheless, so I made this the second theme of this book. One only has to reflect briefly on some of the works we have looked at in this book to

330 Especially literature, which has given rise to an increasing number of monographs. For instance, in addition to those already cited see: Martha Nussbaum, Poetic Justice: The Literary Imagination and Public Life (1995); Bruce L. Rockwood (ed.) Law and Literature Perspectives (1996); Ian Ward, Law and Literature: Possibilities and Perspectives (1995). In the USA there is also at least one journal which is devoted to these two subjects, the appropriately named Cardozo Studies in Law and Literature. The interest is only slowly beginning to catch the imagination of European jurists. 331 The Germans, the lawyers most inclined to doctrinal analysis, have nonetheless devoted one issue per year in one of their most learned journals – the Neue Juristische Wochenschrift – to this topic.

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see how close the link is beneath the surface. Judge Posner’s Law and Literature makes the same point by referring to many more examples than are given here, taken from world literature rather than art in general, even though he remains skeptical as to whether the reasoning of one discipline can help that of the other. But let us be more specific bearing in mind that my aim is not to argue so much the transplantability of literary into legal reasoning but to examine how law and art have dealt with “good” and “bad”. First, the link between law and religious literature is, in one sense, particularly strong since many of the religious texts – the Pentateuch for instance – represented divinely revealed law which actually regulated to an amazing detail many aspects of daily life. Certainly, both religious laws and Constitutional texts seem to be revealed law and also seem332 to come from one will only. But religious and legal texts part company, I think, when it comes to the sanctions they envisage for the violations of their texts. The harshness of some of the religious rules has thus already been noted and so has the fact that, in today’s social conditions, many seem seriously out of date. The expulsion of our first parents from Eden also revealed features of Divine justice which suggest, at the very least, that the biblical texts are not only harsh but also inconsistently applied. This is also true – to some extent at least – with human justice. But, to the extent that this imperfection of divine justice shows that human justice, its shortcomings notwithstanding, arguably tries to satisfy today’s societal demands better, it could be taken as being compatible with the general thesis of this book. The religious texts, especially the account of the trial of Jesus, provide further clues to the co-existence of two lay systems of justice in Judea at the time: the Roman and the Jewish. Since we did not focus on this point in our discussion, nothing more need be added at this stage beyond noting its existence. Such 332 I stress seem for in the case of many constitutions, including that of the USA I think the idea that the come from one will only seems untenable. The whole attempt to paper-over the differences of the Founding Fathers in the process of drafting the Federalist papers must surely attest to this.

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duality of justice may still be found in modern religious systems (e. g., Saria) which combine with lay rules in Muslim states. But nowadays lay systems display a different kind of duality namely that of national and international law (the latter here understood in its broadest possible sense). Some works of art – Faust for instance – can also reflect this link between art and law in a very narrow manner. In fact the play is linked to a very technical part of the law of contract.333 Thus, it is constructed around two bets; and bets and their enforceability cause problems to the law. Mephistopheles also insists that Faust put their agreement in writing, raising the question whether this is really necessary in law. Again, the role that form play in law is important and it depends upon whether it is required as a constitutive part of the transaction or merely to facilitate proof. Law figures in other parts of the play. Margarete’s age is legally relevant to Faust as he tries to convince himself that she is over fourteen and he is thus not committing a criminal act by having sex with her. His killing of Valentin is a crime, though the paralyzing of the latter’s hand by Mephistopheles, depriving him of the chance of self-defence, could reduce the charge from murder to manslaughter. Margarete’s condemnation by the temporal authorities seems as final as court sentences become at a certain moment; yet a new form of Divine appeal intervenes to save her soul if not her body. Goethe studied law and, though he did not enjoy it as a subject, he was conscious of how its tentacles touch on most aspects of life. Such linkages are interesting; and they can also be thought provoking in so far they reveal different ways of conceiving and describing “good” and “bad”. As I general rule, however, I doubt if the way the play touches upon law can be of any technical utility to lawyers except to remind them, as Goethe does with humour, that the technicalities of the law exist even in Hell. Likewise, in Cid, the Count’s sidestepping of his King’s commands could be seen as disobedience of a superior order. It is of

333 The Faustian Agreement (2004) (in Greek).

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a kind that, then as now, could be a triable offence. His duel with Rodrigo would certainly have been a criminal offence, violating as it did (at the time the play was staged), de Richelieu’s attempts to ban dueling. The King’s refusal to “punish” Rodrigo, despite Chimène’s entreaties, is clearly linked to Rodrigo’s important status and could be seen as conferring upon him some kind of de facto immunity from suit. And Rodrigo’s constant inciting of Chimène to take his life is not far short of a plea for assisted suicide. Finally, in Don Giovanni, the legally relevant demarcation line between rape and consenting sex is never far from the surface, not to mention the murder (if murder it is334) in the opening scene which is punished divinely at the end, perhaps, because this is what one expects of a tragic opera. That the law never caught up with the Don may be explicable by the fact that his offences must have often gone un-punished in 18th century Seville where the system of law and order was embryonic. We also noted that both the libretto and the score offer multiple hints that, despite the final damnation, both Mozart and Da Ponte often reveal a certain (considerable?) sympathy for the “villain”. The way the legal points are used in these plays play a part in construing and illuminating the “good” or “bad” features of the protagonists but there are, again, of little immediate or practical use to lawyers. Happily, the authors of these works sensed this themselves with the result that none of these legal points is taken up seriously in any of these plays. Had they been, they would certainly have been boring to all but the most specialist. But this does not mean that law does not always lie just under the surface of what humans do, even in works of art. It would thus seem that, in this world as in the other, one cannot escape legal rules! The opposite presence can also be discerned. Art and literature can thus remind lawyers that evil can attract other consequences beyond those dictated by the law. For

334 At the time this would be determined by the technicalities of the rules governing duels.

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even if hardened criminals or simply callous and uncaring bad persons may not feel guilt or remorse, they can and do experience societal isolation and the resulting loneliness. For Simmons, the murderer in the recent leading American death penalty decision, will go to prison for life; and in the USA – but in European legal systems – “life” means life and this will perpetuate his being cut off from all forms of social life. How harsh – indeed cruel – this can be can be seen from the legal disputes concerning the waiting on death row and whether this should be seen as cruel and unusual punishment, contrary to the Eighth Amendment. So the refusal to impose the death sentence must not be seen as a soft option; on the contrary, given the widely accepted ineffectiveness of the death sentence to deter others from committing heinous crimes, I think passing it can be seen as an act of private vengeance. In this context, we must also not forget the consequences of been condemned to live one’s life in prison: law’s version of Hell. We shall return to this point shortly. The same is true of the (limited) anonymity given to the child molester who will be socially ostracized and, possibly, even become the victim of mob justice if his whereabouts are made known to all and sundry. Again, human vengeance might tolerate such private “lynching” but human justice cannot. But the difficulty in deciding how to draw the line should not be over-simplified to make the courts’ decisions look as if they care more for the assailants than the victims, for I do not for a minute believe this to be so. Finally, the intruding journalist, too, will re-offend, for he lives off of the newsworthiness of public figures, which also nourishes their psyche. Though he may “dine out” on his exploits, he, too, will sense the general opprobrium towards his chosen way of making a living. The tendency of “like” to socialize with “like,” which sociologists inform us happens in real life, will only provide a partial shield. Indeed, one can go further than what I have already said above and return to the idea of Hell as prison. For the wrongdoer, in essence, carries Hell – indeed, two kinds of Hell – with him: one the physical space within which he will spend much of his life; the other, the mental Hell that will haunt him during —

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every moment of his life. All the evil persons here discussed will thus, in differing ways and degrees, feel trapped in their internal prisons. Milton does us a great service by talking openly of Hell not only as a geographical space but also as an innermost state of mind. Like Dante, he gives a very vivid description of the topography of Hell which, for those of us fortunate enough never to have seen a prison from the inside, must not be so very different from that legal version of Hell. For both are barren, inhospitable, and, as Dante put it memorably, make one give up all hope.335 Yet it is the second type of Hell that is more interesting and, in some ways at least, more devastating. For anyone who has not lived through such a Hell, understanding it must be as impossible as describing it. It is from art and literature of all kinds as much as modern psychiatry that we can get glimpses of the inner – especially the guilty – mind which has to live with it; and in this way art and literature repay their own debt to law for being, themselves, so dependent on the latter in its accounts of life. Mostly from art we can also get glimpses on repentance – if it comes, how it comes, and whether it is real. In my view it is not easy to decide if Satan or the other inhabitants of Pandemonium would like to repent but cannot. Another Satan, from Lermontov’s The Demon, brings this ambiguity out beautifully when he tries to earn Tamara’s affections by saying: “I look for reconciliation, I look for love, for adoration, I look for faith in higher good.” But unlike Milton’s Satan, and closer to Goethe’s Mephistopheles,

335 The Divine Comedy, Inferno, Italian text with translation and comment by John D. Sinclair O.U.P. New York, 1931, 1961: Canto III.

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“he is too inconsistent in his passion for evil to figure as a full Devil and too inconsistent in his repentance to make his peace with God and rejoin the obedient angels.”336 Lermonotv’s Devil is thus in keeping with the literary characters of his time: ambiguous; and, as stated earlier on in the text, this ambiguity is reflected in the semi-tones used by the symbolist painter Vrubel in his marvelous painting of The Seated Demon. I make this side comment only in order to suggest how different forms of art, by treating the same subject, can help give us multiple angles of the subject of our examination. Multiple but, it should be noted, once again, not outright evil as religion wants us to see him. Bulgakov’s Woland offers a good example.337 Indeed, here Woland, a scrupulous distributor of penalties to those who are really bad and, (in the pagan tradition) almost of equal status with Jesus, is (in artistic terms) the contrast needed for people to compare and understand good and evil.338 Thus Bulgakov’s Woland is not Satan (i. e., the “opponent”) but modeled in many respects on Faust’s Mephistopheles – the power which forever desires evil and forever accomplishes good. By the end of the novel he has thus emerged not just as a positive figure; by punishing the main sinners of Moscow rather than destroying the entire city (as is predicted throughout the book or as a Christian 336 Andrei Siniavskii, On Socialist Realism (1982), p. 184. The point is made in a most dramatic way in the poem as the Demon tries in mid-air to intercept – unsuccessfully – the angel who is escorting Tamara’s soul to Heaven, leaving him, again “Alone in all the universe, /Abandoned without love or hope!”. 337 In Master and Margarita (1938). The name was taken from Faust’s calling only once in the eponymous play Mephistopheles Voland; and the change of spelling, not in the manuscript version of the novel, may represent a playful attempt by Bulgakov to represent with the letter W an inversion of M, the first letter of his Christian name. 338 At one point he thus mocks Jesus’ emissary for wishing to cleanse the world of darkness by sarcastically remarking: “You pronounce your words as though you did not recognize shadows. Not evil either? Will you not be so kind as to consider the problem of what would become of your good if evil did not exist? And how the world would look if shadows were to disappear from its surface?”.

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God might react to sin); he is also focusing his main wrath on the literary establishment which, as we saw in Chapter VII, was inflicting such harm on literary creativity during the era of Socialist Realism.339 But let us return to Satan’s inner Hell. How oppressive it must be comes out most clearly when Milton describes Satan observing Adam and Eve in their Eden bower for the first time in Book Four of Paradise Lost. For here the poet has turned the un-repenting general into a common voyeur. This is part of his deliberate degradation; and by thus portraying him the poet reveals in Satan envy, sexual frustration, and despair, all bottled up as, dazzled by Eve’s beauty, he realizes that he can never partake in such bliss himself “while [he] to Hell [is] thrust”.340 Indeed, this inner Hell must be worse than its geographical counterpart. For the latter, as we have already noted, barren and dark though it may be, was somehow tamed in shape and form by the indefatigable fallen angels. But from the inner Hell there is no escape. Again, Milton puts it well in Satan’s mouth when he makes him say: “Which way I flie is Hell; myself am Hell.”341 Lermontov’s Devil suffers likewise. The insights that literature (and art in general) can give us on how the human mind, especially the sick mind, works the consequences of wrongdoing and how they affect the human condition can be especially illuminating when they also reflect their authors’ own state of mind.342 The works of Shakespeare, for example, and the great Russian novelists of the 19th century such as Dostoyevsky give ample evidence of this. Combined with psychiatry and criminology they can compliment the study of human deviance and even suggest alternative ways of handling it, thus being of great interest to law as well. For these are complex social phenomena and, to the extent that they can be understood, they will be better understood if studied from differ-

339 For further details (and references), see J. A. E. Curtis, Bulgakov’s Last Decade. The Writer as Hero (CUP 1987). 340 IV. 508. It is from his inner Hell that here he feels unable to escape. 341 IV. 75. 342 This is particularly obvious in the work of the Marquis de Sade, on which see Safranski, Das Böse oder das Drama der Freiheit (2001), pp. 194 ff.

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ent angles. Linking art, literature, and law is thus quite proper since the one stimulates ideas about itself as well as the other,343 though it must also be noted that the reasoning techniques of each are not likely to be of direct use to the other. Mutual, intellectual stimulation is thus the main benefit from this interaction. Posner’s doubts about the hermeneutic value of the literary texts for the purposes of strict law must, therefore, be treated as convincing. Less convincing, I think, he is when he also doubts the educational value such texts may present for lawyers; and here I have much more sympathy with Professor Martha Nussbaum’s view that “…storytelling and literary imagining are not opposed to rational argument but can provide essential ingredients in a rational argument.”344 We shall return to this point in the next section for much depends on defining education and making it clear what we expect from it. So let us conclude this section which must, of course, be read in conjunction with the ones that follow, by saying that life thus provides both disciplines – literature and law – with their themes, the problems which they must address and, if possible, solve. Above all, it furnishes the elements with which the artists must make up their characters. Law, likewise, deals with people who reflect the myriad combinations of pressures, temptations, desires and tendencies that prevail in any particular society at a particular time; and all these elements are true – rarely is one so dominant as to eclipse the others and must thus also be reflected in a judicious manner in the final judgment. This, again, makes humans neither wholly “good” nor “wholly” bad but “mixtures,”

343 This is the main theme of Richard Weisberg’s fascinating book The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (1984) where, for instance, he shows how understanding the differences between the European inquisitorial system of criminal procedure (very different to the accusatorial model of the Common law) can help explain the Anglo-Saxon literary reader some of “peculiarities” of Fyodor Dostoyevsky’s Crime and Punishment or Franz Kafka’s The Trial. 344 Poetic Justice The Literary Imagination and Public Life (1995), at p. xiii though, as she rightly adds further down (at p. xvi) this does not mean that “empathetic imagining [should be substituted] for rule-governed moral reasoning.”

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whose “badness” must not only be punished but also be understood before it is punished. Thus, how art and law will handle these daily twists and challenges will, to some extent, be determined by their respective aims, rules, and techniques; but only to “some extent.” For the realities of life will, ultimately, set the outer parameters within which these solutions (in art and law) have to be found; and if they are not observed, the treatment given will be either unsustainable or unbelievable or both. No wonder Turgenev has “to kill off” Bazarov in his play because the environment of the time made no other outcome plausible. This has always been the case; the political environment of the play or work of art dictated its contours and its success. If the author failed to obey these dictates and remained ahead of his time, he had to pay the penalty. Machiavelli, as a politician as well as an author, exemplifies this observation. The prevalent rules thus have to be obeyed. Don Giovanni has to go to Hell; Satan has to be not just defeated but also hideously transformed from once being the “most beautiful of angles” into a hissing snake. We cannot escape the rules and conventions of our times. As Faust mocks Mephistopheles, when asked to sign a document in order to seal their pact, even Hell runs according to its laws.345

(c) Third theme: the interaction between the real and the invented and how the latter can enrich the former Though the previous subsections illustrate my view of a close link between real life (including law) and artistic creation, they also begin to suggest the differences between the real and the invented, the emphasis here been shifted to the differences, mainly hermeneutical and stylistic, between law and art, literature in particular. This is the third theme explored in this book, which then tries to trace some of the consequences that flow from it.

345 Lines 1413 ff. To me this suggests that Faust, as a gentleman, would never dream of not abiding by his word whereas Mephistopheles is seeking extra protection in formalities.

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Shelley, contrasting a story and a poem, once wrote346 “A poem is the very image of life expressed in its eternal truth. There is the difference between a story and a poem, that a story is a catalogue of detached facts, which have no other bond of connection than time, place, circumstance, cause and effect; the other is the creation of actions according to the unchangeable forms of human nature, as existing in the mind of the creator, which is itself the image of all other minds.” This is a more elegant way of expressing the starting point I am trying to make about the differences accorded by these two forms of human endeavour – law and literature – towards their respective subjects. Indeed, there is also something in the sentence that makes me feel inclined to substitute the words “art” for “poem” and “legal decision” for “story” and still feel that the idea in Shelley’s sentence works. If I am right in suggesting this transposition, it might serve as a starting point for a list of differences including, consistent with the quotation, differences in aims, style, and hermeneutical techniques employed in these two genres of human activity: art and law.347 The differences in “writing styles” is both interesting and important, even though in literature and law the issue of communication is crucial to both. Thus, if one reflects carefully on Shelley’s words, especially the ones that I italicized, one will begin to see the way the facts of a dispute are laid bare by a Common law judge at the beginning of his opinion. In theory, the litigants possess a certain freedom as to how best to narrate the facts to make them most attractive for his client’s case. Many think this, necessarily, involves high rhetoric.

346 “A Defence of Poetry,” reproduced in The Major Works etc., at pp. 679–80 (my italics). 347 As to how similar their hermeneutic techniques are I leave for another occasion, not least since this aspect of the two subjects has already been discussed by many others before me. See, for instance, Sanford Levinson and Steven Mailloux (eds.), Interpreting Law and Literature: A Hermeneutic Reader (1988).

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Often, however, this is at its most effective when it is done by means of a low key, unadorned, plain prose, and selective presentation of facts, with the aim of gaining the confidence of the judge. Cicero’s (unsuccessful) defense of Milo in 52 B.C. offers an example of this, revealing, once again, this greater resemblance of ancient Romans with modern Englishmen than with their own Italian descendants! From ancient times, this technique won the admiration of celebrated rhetoricians; and that is what happened with Cicero’s Pro Milone oration.348 But, if this “selective” narration of facts is an option which advocates possess, in theory at least, it is not an option open to the judge who will try the case. For he must select from competing presentations the most convincing one and then lay out his own, clear, sequence of events before he can proceed and rectify what went wrong or aid what must be promoted. That, at any rate, is the theory. Yet in practice this is, chronologically, the first moment when the judge’s creativity can come to light and the mastery of his craft help him move towards the target he wishes to attain (and which by now is in his mind). So a judge with a literary bent, an active imagination, and a clear aim, can craft the narrative of what to you and me may appear as plain facts in order to fashion his decision.349 This does not mean he is thereby, changing the facts or even quite distorting them. But it does mean that through subtle emphasis, appeal to emotions, and resort to other rhetorical techniques (including understatement), he can lay the grounds for the result he wishes to achieve. Many examples can be given to illustrate this proposition though I confess a certain fondness for the English case Miller 348 For instance, Quintilian’s Institutio Oratoria, (Loeb ed. transl. by H. E. Butler 1977) Book IV, ii, 52. 349 The late Professor Karl N. Llewellyn in a now forgotten but beautiful article – A Lecture on Appellate Advocacy, 29 U. Chi. L. Rev. 627, 637 (1962) – showed us the way Justice Cardozo managed, by embroidering the facts in Wood v. Lucy, Lady Duff-Gordon, 118 N.E. 214 (N.Y. 1917), to help reveal the solution he wished to achieve. In the same piece, Llewellyn also showed us how he could reach the opposite result by simply altering the way the facts were presented. Common law judgments, more so than the civilian, thus give a gifted judge the opportunity to display high style.

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v. Jackson350 which factually deals with a somewhat banal situation involving the game of cricket. Comparing the two judgments of Lord Denning and Lord Lane (later to become Lord Chief Justice) brings these points out clearly; and those who have discussed the inter-relationship of law and literature, have not missed the chance to comment on the effectiveness of these techniques.351 This is literature in law; but it is also literature – through style and rhetoric – influencing the development of the law. For Lord Denning’s long, lyrical presentation of the facts which shook the little village in County Durham builds up to the conclusion he wishes to achieve: the interests of the village to keep its cricket field operational outweigh the plaintiff ’s interest in her safety and property and thus her request to close the playing field down fails. Such a closing down would, in English law, have been the inevitable result if the playing of cricket in such circumstances was held to amount to an actionable nuisance given that the activity led to physical damage to the plaintiff ’s property and was not only an interference with her “enjoyment and use” of the said property. This outcome, the learned judge wished to avoid; and the only way of achieving this was by holding or, rather, leading you, the reader, to agree with him, that there was no actionable nuisance. The problem with this approach is not that it is not attractive, indeed it is beguiling. The problem is that “unreasonableness” in nuisance looks at the effect the activity has on the plaintiff and thus differs from the tort of negligence where “unreasonableness” refers to the defendant’s conduct. Seen in this way, no one can argue that suffering physical harm to one’s property every Saturday when cricket was being played on the adjacent grounds could be seen as being reasonable. Denning is thus here using language, presentation of facts, and emotion to turn the law of nuisance on its head by making us consider 350 [1977] QB 966. 351 For an excellent account, which also brings into play the Roman example mentioned in the text, see, Willem J. Witteveen, “Cicero Tells a Sorry on Narration and Rhetorical Reflection” in Law and Literature Perspectives (ed. Bruce L. Rockwood) (1996), 427 ff.

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the reasonableness of the activity (before considering whether to terminate it or not) instead of focusing on the reasonableness of its effects on the plaintiff and his property. Incidentally, he is also helping achieve this by persuading the reader to conclude that the plaintiff is the “baddy”. What the gifted judge can do, the able artist must. For him the facts are nothing more than the raw material. He, unlike the judge, must “exploit” if not embroider it in order to draw from them the maximum literary and aesthetic effect. With them he must entertain and, employing art in its highest form, he must mould them so that they are made to go beyond entertainment and begin to edify and inspire. As one learned author put it:352 “The true aim of literary studies is to lift the student out of his provincialism by making him the ‘spectator’ if not of all, yet of much, ‘time and existence’.” That is what Virgil set out to do in his Aenead for, as we have seen, there was a message in the mind of the creator that ran throughout his work, and this is what we get by reading his epic poem. The satisfaction derived from the work may be aesthetic but the message was political and contemporary to when the work was written;353 his art and language made it eternal. The same goes for Corneille whose play was, as we noted, an instant success with all except those who think they have a monopoly of explaining, appreciating, or damning works of art. These different aims can help explain why art and law approach their material in different ways. From their comparison, we see that each comes up on top in different ways. Thus, what for art is a broad sweep and, perhaps, idealized exaggeration can be as important as focused accuracy is essential to law. Playing on our emotions is a “must” for the former, 352 C. S. Lewis, “Is English Doomed?” in The Spectator, 11 February 1944 (reprinted in Essays, op. cit. p. 27). 353 Though one can also see in the eponymous hero the modern refugee or immigrant, for ever searching for a land where he can settle and live peacefully and in dignity. For don’t the dissposessed Trojans shere some similarities with the Jewsi of the Diaspora?

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but only of secondary importance in the latter.354 Dramatizing can help augment the effect that art has on its audience; with a measured and emotionless response the law becomes more persuasive and acceptable. The differences do not imply that the one discipline is inferior to the other. Nor would it be right to infer from this that in law, especially in judicial opinions, we cannot find clear, even wondrous examples of literary style. To be sure, we do not expect such display of style355 from most judicial opinions. For judicial decisions represent an exercise of political power, at times going beyond the resolution of a particular dispute and setting into motion far-reaching consequences.356 Yet examples of judicial style that have also attained the aesthetic appeal of literary texts do exist. But they are rare. If, because of lack of space, we limit the above observation to American law we can find evidence that supports it fully. For, if judicial style and rhetoric were rare357 in the judgments of the USA Supreme Court358 during the 19th century, they may have become even rarer in our times.359

354 Though as we shall note below, the skilful judge does both. 355 Though, as we noted a few paragraphs earlier, resort to rhetoric, in order to persuade, is another matter. 356 One only has to think of cases such as Brown v. Board of Education 347 US 483; 74 S.Ct. 686 (1954) its repercussions – immediate and long term – to realize the awesome effect that a judgment can have; and, in this case, this is that much more remarkable given that these effects stem from a remarkably short judgment, a mere fourteen paragraphs long. 357 Chief Justice Marshall was, obviously, the towering exception; Justice Storey may well have been the next best for he was certainly a most systematic, writer. 358 The contrast with England is, in this context, notable for the 19th century produced some of the greatest Common law judges. The literature on their lives, background, work, and long term influence is rich but I still think that the general reader will find few that surpass Mr. C.H. S. Fifoot’s Judge and Jurist in the Reign of Victoria (1959). I say nothing here about the judgments of European courts since, in their drafting, they obey different rules, often fashioned by historical exigencies. On the whole, these are not conducive to an end product that presents aesthetic merits, even though it requires considerable skill and experience if it is to be drafted properly. 359 According to a contemporary commentator the opinions of, for instance, the 1992 term (which he surveyed more closely) were “uniformly unremarkable

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The above, however, do not mean that we do not encounter in the American scene judges who have produced beautiful prose. The names of Oliver Wendell Holmes, Benjamin Cardozo, Robert Jackson, Felix Frankfurter, Hugo Black, William O. Douglas and, most recently, Richard Posner, immediately spring to mind, not least because most (not all) of these have also displayed a considerable interest in addressing the overlap of law with other disciplines in a considerable corpus of extra-judicial work. This has been repeatedly surveyed by American authors, though comparisons with their English counterparts –, e.g. Lord Denning – are, to my knowledge still missing. Comparison with European judgments may be impossible given the different rules which these courts have to follow. More relevant to our purposes is the question to what extent their characters and personalities of the judges affected their style and, in turn, the way they decided who was “good” and “bad”. Holmes, was certainly confident; and his confidence could even be taken to suggest arrogance, vanity, and an excessive attachment to pragmatism rather than values, especially moral values.360 How this can be translated into our present discussion about “good” and “bad” is another matter. But it certainly does not place, as I pointed out in the first chapter, Holmes in the “saintly” kind of judge that Cardozo361 and, perhaps, Denning can be included. To put it differently, the way a judge expresses himself may not only give us an insight as to his values but also a clue as to whether his product – the judgment – demonstrates in style and language”. See: William Domnarski, In the Opinion of the Court (1996), p. 57. The author attributes this in part to the pervasive influence of law clerks who, increasingly, write (at least) the first draft of most judges’ opinions. 360 Professor Albert W Alschuler’s Law Without Values. The Life, Work, and Legacy of Justice Holmes (2000) explores this theme and is also remarkable in so far as it is one of the few truly substantial works which has “dared” to bring the great judge down a peg or two. 361 It is interesting to note that Holmes did not approve Cardozo’s style: see Domnarski, In the Opinion of the Court (1996), p. 67 and reference in note 50 to the diaries of Mark De Wolf Howe’s, Holmes’ greatest biographer. Jerome Frank, himself a contemporary of Cardozo’s and also a fine writer, found the latter’ style to flowery and even attacked anonymously in the Virginia Law Review. See Anon Y. Mous, “The Speech of Judges”, 29 Va. L. Rev. 625 (1943).

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a greater importance to aesthetic rather than moral values. If such things can be proved or, at the very least, made to sound arguable, they could provide us interesting ideas about Continental European judges whose judgments are more “opaque”362 and thus less revealing of their true, inner thoughts. But if the symbiosis of law and literature is to be found in the judicial opinions,363 of relatively few judges, it does not mean that law is not almost always to be found in the great works of literature and, to some extent, in other forms of art as well, even though Judge Posner, in his various writings on the subject, has, in essence, treated the legal element in literature as “incidental” only. Nor should this lead us to believe that they cannot learn from each other in a wider and more general sort of way. This last question has been addressed by many who have written on law and literature. Alas, however, it seems to have become too “politicized” (at least in the sense of echoing their respective views about the political role in legal interpretation) in the writings of some of the main protagonists such Posner364 on the one hand and scholars such as James Boyd White365 or Robin West366 on the other (to mention but three). As a result, I think, it is now difficult, if not impossible, for outsiders to these disputes to pronounce on the subject without provoking the ire of some at least of these combatants. For like all political combatants, the above scholars seem to request “complete loyalty” to the totality 362 Comparative judicial style in Europe are discussed in La Sentenza in Europa: Metodo Tecnica e Stile (1988). 363 In the form of legislative drafting we find in the French Civil Code of 1804 excellent examples of fine literary style. On this, inter alias, see Gabriel de Broglie, “La language du Code civil”, Bicentenaire du Code Civil, Séance solonnelle du lundi 15 mars 2004, reproduced on the webpage of the Institut de France of that date. 364 The judge’s learned views were canvassed in a legal article two years before the first edition of his book on Law and Literature appeared and he has, in essence stuck to them, with his well-known tenacity. Thus, see Posner, “Law and Literature: A Relation Reargued”, 72 Va. L. Rev. 1356 (1986). 365 J. White, “Law as Language: Reading Law and Reading Literature”, 60 Texas L. Rev. 437 (1982). 366 “Communities, Texts, and Law: Reflections on the Law and Literature Movement”, 1 Yale J. of Law and Humanities, 138 (1988).

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of their theses; and these are so dismissive of those of their opponents, that the chance for eclectics like myself to cherry pick or try to broker some kind of compromise seems impossible. For present purposes, however, it may be easy to by-pass this (un-ending controversy) and content oneself with the conclusion that the different aims of art and law may explain the different ways they portray “good” and “evil” and, more importantly, the different ways they treat those found to be “bad”. To put it differently, one should remind the reader that, though our study has, inevitably, been forced to look at law and literature, its overall aim has been narrower than that pursued by the above-mentioned combatants who are trying to determine how literature may enhance legal understanding. Adopting my optic and focusing mainly on the treatment given to “good” and “bad”, one can thus suggest that the law comes up with the more measured reaction than religion to the question how should one conceive and handle “good” and “evil”. In this, law may also be coming close to the great works of art, to the extent at least that their creators deliberately left their characters open to differing interpretations and maintained a certain distance from religious or purist views I think this is an important point which must, one day, be pursued further. For, I would like to believe that this (limited) rapprochement of law and art (or literature) – their common interest in or preference for the ambiguous, the measured, the ambivalent – makes sense in so far as it coincides with the views most (tolerant) people might instinctively share. If the above statements are arguable, and I personally believe them to be so, they also explain why the great artists and writers chose to abstain from any idea of original intent, authentic interpretation, or absolute notion of “good” and “bad” and, arguably, were open to differing future interpretations of their work which they, themselves, made possible through their open-ended texts (or compositions).367 Their desire to allow differing interpreta367 Different is, of course, the issue of “authentic interpretation” which is something which could be particularly important in music where the search for “authenticity” often takes the form of attempting to perform a piece with original instruments.

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tions I think also means that contemporary readers, listeners, views, should be allowed space to insert in these works their own understanding. I do not see this as a sacrilege against the original understanding; I see it, on the contrary, as a way of ensuring the classic, i. e. enduring status of the work in question. As I pursued these ideas in my book I felt that they had an important impact on my attempt to understand “good” and “bad” by discovering how law and art had treated them in practice. This study also revealed an intriguing and even paradoxical result namely, the desire of many artists to represent “bad” as “grand” or even, in differing ways and degrees, likable. This third theme is thus best understood if the analysis is split into two parts: (a) was what I was saying true; and (b) if so, how does one explain this? If art draws from real life,368 as we have suggested it does, why should this be so? For in real life, certainly as seen from the vast bulk of criminal cases, the villains are, nine times out of ten, bad, base, drab, or downright perverse. I have already tried to use quotations to illustrate my first sub-point, so it is the second part of my sub-theme that remains the most puzzling. In depicting “bad” vividly – if not presenting it as understandable or even acceptable – one wonders whether great artists had – or, because of their art, were “permitted” to display – a somewhat low threshold of morality? Certainly nowadays, and I think in days-gone-by as well, we allow artists to get away with behaviour we would not otherwise condone in ordinary people.369 No one will bat an eye lid at the news of a pop star having been arrested for possession of prohibited drugs; but such news will make the headlines if the accused person is a businessman or a politician, or, even, a politician’s teenage child. An adulterous relationship by a public figure will, likewise, attract much atten-

368 As always, Oscar Wilde, put it more felicitously in De Profundis (Harper Perennial edition 1989, p. 912) when he claimed that he “treated Art as the supreme reality, and life as mere mode of fiction”. I am grateful to my former pupil and now young colleague Dr Anthony Karampatzos for reminding me of this quotation. 369 American Conservatives thus delight in downgrading the morals and the judgment of Hollywood.

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tion, perhaps, even opprobrium, even in these days where extramarital relationships have become very common. If that is why we “tolerate” greater laxity among artistic creators and forgive them, indeed, even admire them at times when depicting “bad” in an acceptable manner, the task of moralizing has shifted onto the shoulders of the literary critics of these works. And they, invariably commentators but not creators, have been quick to show their tendency to dissect and criticize rather than construct and praise. Chapelain was one such character. As stated, through patronage he held sway over the careers of so many artists of the seventeenth century, and was even allowed to fix the amount of state pension awarded to them for their distinction.370 But the authority delegated to the “créature” could not save his own artistic work. For he also wrote poetry which was highly mocked by “greats” such as Bossuet, Molière, and Racine (among others), and it was left to Théophile Gauthier in the 19th century to attempt an unsuccessful re-appreciation. A host of other critics have tried to blacken Don Giovanni as much as the opera itself, through the kind of Freudian interpretations we alluded to in chapter three. The results have been fairly uniform: most critics have remained almost unknown; the creator has become a classic. Though artists – great people as I suggested in chapter one – can depart (are almost expected to depart) from the prevailing norm of behaviour (if not also morality) in their private lives and even in their art, and some of those here considered certainly did, I do not think that this provides us with a full or convincing explanation of their presentation of “bad” or “evil.” In my view a second explanation must be found in the artistic / aesthetic need to aggrandise the “bad” because the prevailing mores of their time obliged them to damn it in the end and they were thus in search of a counter-balance. For beauty (and drama) is often concealed in contrasts. Augustine is a better Saint – and he admits himself in his Confessions – for having previously been a sinner (and known it). Monet’s “Olympia” is

370 Naturally, none had as high a pension as he awarded to himself.

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a remarkable painting, not least because of its clever use of the complimentary colours of blue and yellow. The end of the Don Giovanni opera is full of similar contrasts: Don Giovanni’s courage compared to Leporello’s cowardice, Don Giovanni’s mixed attitudes towards the Ghost of the Commendatore, the modulations of the music from the truly infernal and disturbing to the out-right light distraction provided by the unexpected brief appearance of the martial air Non piu ˘ andrai from the Marriage of Figaro sending Cherubino off to war, all help produce an ending that is not only musically as memorable as the first part of the opera but also obscures the somewhat limp middle section. Yet there may be a better or, at least, a third and parallel explanation for artists endowing “bad” characters with interesting features other than the notion that they, themselves, could lead lives that fell below accepted standards. For by following such a strategy they not only gave to the clash of values, duties, and wills depicted in their work a more truly titanic dimension; they were also forcing us to consider the redeeming features of the villain. Indeed, they were closer to life, which is rarely black or white (as religious texts like to portray it) but gray, mixed, and confused. By accepting this and depicting the world they found, they may have been encouraging us to take a more relativistic approach to motives and behaviour, crime and punishment, offender and offended – to see, in other words, the “other side.” The traditional, absolute, and rigid ways of religion could not have had much appeal for their intellects – even if in many cases religion dominated their souls – at any rate so long as they wished their work to remain close to life. Seen in this way, classical art was, in a subtle way, relativistic and not as absolute, bending and not rigid, nuanced and not categorical, as its final outcomes may suggest, for its raw material was just that: flexible, fluid, malleable, mixed, ambiguous. To the extent that artists (of all kinds) succeeded in making us see that there is “always another side” and forced us to weigh the manifold and contradictory features of humans, art and literature may have come closer to the real world as well as the world of law, which strives for balance and compromise and, again, avoids to see matters or react to them in absolutes. But —

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they may have also achieved more, namely to ensure that such works were flexible enough to accommodate future change in ideas and even aesthetic tastes. I feel that experiencing this side of humanity, even sympathizing with it when it stoops lower than it should (as happens, for example, in the seduction scenes of Faust), is attractive if not edifying. Goethe takes this edifying process to new levels when he makes even Mephistopheles revolt against the low point reached by the normally lofty Faust371 as Margarete’s dishonour reaches its climax. The text gives many clues suggesting that his lust has taken grip of his mind as well as his language, shocking even the Devil. This attributing of human standards of decency to Mephistopheles, giving him a human touch, resembles Milton who, as we saw, makes Satan weep before his defeated troops, and may even explain the earlier (and otherwise strange) statement of Geothe’s that Mephistopheles is the man who always plans evil and ends up doing good.372 Lermontov paints his Demon in the same way; and when so many depict the Devil in such terms one begins to wonder at the extreme, rigid, and outright evil image painted by religious texts and depicted with horrific vividness by medieval artist – notably Hieronymus Bosch. This is why I argued earlier that religion (and other strongly held ideologies) do not tolerate nuances and thrive on exaggeration. The success of the poem and the later painting by Vrubel both indicate the fact that the Demon reflected the doubts and uncertainties of 19th century Russians. The approach here favoured is also humbling as much as elevating for the rest of us in so far as it makes us humans conscious of the infinite possibilities inherent in the idea of being human and conscious. Indeed, it can mean even more for those who are religiously minded. For those who believe in the idea of primordial sin could see in this appreciation of weakness the first tentative step towards change, improvement, and thus redemption. An individual may discover on his own the errors of 371 Lines 2621 ff. 372 Lines 1335–36: “Ein Teil von jener Kraft, / Die stets das Böse will und stets das Gute schafft”.

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his ways. This is more likely to happen if he, unexpectedly, finds himself going through a difficult patch, suffering an illness, or experiencing an awkward moment which until then was, to him, purely theoretical, than if he is bombarded by moralizing propaganda by someone hell-bent to save his soul. For whatever reasons, to end up sympathizing with the damned, realizing that one is vulnerable and damnable oneself can help people discover the suffering of the other side and make them less doctrinal. Not everyone will, of course, adopt such an interpretation of literary texts. Yet convergence and confluence have always been ideas that have appealed to me in my legal work as a comparative lawyer. And it is nice to see these notions appear here, as well, even though we are talking about different types of intellectual activity: art and law, and not simply about different legal systems. The greatness of the artists whose work I have glanced at in this prolonged essay lies precisely in the fact that the ambiguity of their account and writing leaves room for multiple interpretations. This allows us to find similarities in human behaviour and human attributes across borders and over huge spans of time. Waking up to the consequences of such realization could greatly affect the way we treat each other. So I, for one, would champion the study in juxtaposition of art and law for its broader educational value.373 This is not because its hermeneutical techniques are easily (if at all) transferable to law; nor because the study of these texts can overcome our own nature and make us good people. The real advantage, for me lies elsewhere namely that such studies in parallel can (a) help train law students to see both sides of people and their arguments; (b) help them develop their human and humanitarian instincts which, in real life, may often come to use more often than pure law; (c) help them escape from the legalistic language and reasoning which law schools instills so ruthlessly in the unwary; 373 Thus sharing the views of, among others, Professors G. Dunlap, “Literature Studies in Law Schools”, 3 Cardozo Studies in Law and Literature, pp. 63 ff (1991); Jack Getman “Voices”, 66 Texas L. Rev. pp. 577 ff (1988) and Ian Ward, Law and Literature. Possibilities and Perspectives (1995), pp. 22–27.

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(d) and teach them the art of compromise, for compromises last longer than (temporary) full victories. In seeking in instruction the main reason for encouraging lawyers to broaden their education I do not forget that in these days of strained financial resources choices have to be made and the law curriculum cannot be widened ad infinitum. But at least, the cultural enrichment which I advocate is more useful than the classes that take the form of “first person narratives” which some adherents of critical legal feminism seem to favour in lieu of the traditional law class or seminar. For this new form of teaching strikes me as an amateur session in psychoanalysis which seems to me a waste of good tuition money not to mention valuable instruction time. Incidentally, my way of introducing these texts into the legal curriculum does not preclude colleagues with a feminist pre-disposition to introduce their own criticism of the examined literature, even though this is not what I would primarily wish to do. Will all this make lawyers also better people? This is the last question which we must address in this section; and I have already hinted my own belief how education can help (but not, on its own, achieve) this aim. In addressing this issue in the next few paragraphs I have again done so conscious of the dangers of being snared by the politicized debates one finds in much of the American literature. Not surprisingly Judge Posner, is one of those who has engaged in this debate. Again, not surprisingly, he expresses his skepticism about the edifying effects of high culture in a forceful manner374 On page 310 of his Law and Literature he thus quotes another scholar375 observing that “Despite their familiarity with the classics, professors of literature do not appear to lead better lives than other people, and frequently display unbecoming virulence on the subject of one another’s shortcomings.”

374 Thus, see: Law and Literature, 2nd ed. (1998), pp. 305. 375 K. K. Ruthven, Critical Assumptions (1979), p. 184.

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This is a well chosen comment, deficient only in so far as it appears to be limited to professors of literature and does not also include professors of law, not to mention judges, especially judges of the US Supreme Court. But Judge Posner is, as those who know his work well will recognize, a fighter, not just a writer and a judge. He relishes – or so his works suggest to those who do not know him personally – the Socratic kind of debate encouraged in American law schools. Revealingly, in his text he thus goes further than the above statement suggests, showing his own cultural and political beliefs which predispose him to entertain doubts about the value of such classical, philosophical or literary texts; for he is not arguing but also preaching. He thus states in an interesting way that “More people have been changed by natural science (think only of Darwin) and social sciences – a body of research and writing that included the works of Adam Smith, Marx, (…) Keynes (…) and Hayek (…) – than by literature.”376 In the world of thought, these are great figures. Yet, I cannot help but feel that Posner is pushing his luck too far by asserting his credo in such a broad manner. I say this not so much because I find this Chicago-style377 single-minded attachment to economic theory and its gurus over done; after all, I find any theorists who falls in love with his theories to be often less appealing and convincing than he would were he to promote them with greater moderation. But I feel unhappy with his pronouncement because I believe that any tendency towards mono-causal explanations of social phenomena weakens the efficacy and ap376 Law and Literature, 2nd ed. (1998), p. 316. 377 I may be using here too broad a brush to taint Chicago Professors with whom I agree and whose work I admire. Thus, to Martha Nussbaum’s The Fragility of Knowledge. Luck and Ethics in Greek Tragedy and Philosophy (1986, updated ed. 2001, already cited), I would add her later work Love’s Knowledge: Essays in Philosophy and Literature (1990) though also repeating that I am in this book more concerned with the narrower notions of “good” and “bad” the more wide-ranging issue of literature, philosophy and its utility in shaping legal reasoning.

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peal of a movement (which has, undoubtedly enriched the entire debate about law and justice) by limiting it to only a section of the population.378 In plain English, Posner thus strikes me of going “over the top.” The Posnerian approach also deprives us the chance to ask whether some leading judgments (not to mention legislation) could be given a different or more nuanced direction if the deciding judge or legislator was more steeped in classical literature and philosophy than economic theory and the kind of Spensarian ethics which dominated Holmes character and thinking after his Civil war experience. In the introduction to this book I made a brief allusion to Justice Holmes’s opinion in Buck v. Bell;379 and like most commentators expressed my worries about the underlying philosophy which I cannot brush aside (as Posner does with relative ease) by eulogizing “the beautiful prose.” The prose is, indeed effective.380 But the language is as cold and unfeeling as the man who wrote it. If it was debatable when it was written, I think it is now also objectionable given the sensibilities of our era; and, if I am right, this text will not survive the test of time. Indeed, I am not sure it has, except to illustrate Holmes propensity to pay more attention to the aesthetic appearance of his texts than their moral content. Yet Posner does not give up easily. He invokes Holmes’s wide reading to strengthen his argument that extensive culture do not make good people. I suspect that Posner’s view is, to some extent at least, shaped by the fact that no one can demonstrate in a quantitative (by which I mean statistical) way that it can have an effect on character, and this is the only kind of proof which

378 This is certainly true if we are thinking in terms of the academic population. 379 274 US 200, 207 (1927). 380 The power of the prose also makes us forget the limits of the moral permissibility of sterilization. Holmes’ wording seems to justify it quite extensively. More cautiously phrased and thus more thoughtful is Professor Richard S. Markovits’ approach in Matters of Principle. Legitimate Legal Argument and Constitutional Interpretation (1998), pp. 307 ff.

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would ever convince him.381 Posner is also dealing with reading literature per se and not looking at “character forming” education which draws on literature among other things in order to make “good” people or citizens. That simple reading does not, without more, have this effect, must surely be right. But the distinction between “were reading” and a “character-forming education” seems to be ignored in the Posnerian argumentation. So, to my knowledge, Posner has never really considered the importance of this systematic education; the kind of education advocated by, say, Socrates a couple of thousand of years ago, glimpsed at in Professor Nussbaum’s books, or pursued by the English public schools during their heyday. This was character building education, which drew its material for philosophy, ethics, and history in order to support its teachings and, indeed, often combined it with the kind of discipline and competitiveness which comes with physical education on the sports ground (also favoured by the ancient Greeks). This kind of education, though no doubt often failing to achieve its proclaimed aims, has played an important part in forming “good” citizens and, in their heyday, keeping Empires going. I suspect that even Posner might find it difficult to deny this if he were ever to turn his capacious mind to this type of education. I would further argue that the main reason why such education does not always work is because in many instances the “pupil’s”382 character is already perverted by nature or too deeply scared by life to be receptive to its lessons. Arguably, this is the case of the mature Holmes who, in his post-Civil War period not only romanticized war, but whole-heartedly fell for Herbert Spencer’s Social Statics.383 To try and argue therefore that reading did not make Holmes “good” or failed to give his judgments a 381 Even though, equally, no one can demonstrate in such a statistical way that it cannot! 382 I am using the word here in the broadest possible way to include adults resorting to wider reading. 383 Published in 1851 and maintaining that starvation, poverty, suffering and warfare were nature’s way of elimination the unfit. Holmes made this theory his own in his most celebrated judgment in Lochner vs. New York, 198 US 45, 75 (1905).

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much needed shot of humanity, is not tantamount to saying that proper education cannot have this effect. All that the Holmes’ example shows is that the character, outlook, and mentality of the person we are talking about was already formed and closed. I get the impression that many of the most modern readers of Holmes’ life and work might accept such an explanation; and they might even see the same degree of blinkered view in Posner and his work, and this despite the catholic nature of his interests. So where does this leave Holmes in the context of our discussion of “good” and “bad”? It would clearly be taking the evidence too far to argue that in his professional life Holmes was “great” but that in his personal life morality figured low. It is, however, possible to argue that his judgments reveal a greater pre-occupation with aesthetic than moral values. And if we adopt the wide definition of “bad” that we have been using in this book, he certainly does not appear to have been a “nice or good guy.” Certainly the person who produced the Justice’s first official biography in 1989 – Sheldon Novick – replied with an unhesitant “no” when asked if one “would have [ever] wanted Holmes as a friend.”384 My summary would be: fascinating but thoroughly unpleasant! (d) Fourth theme: “perfect” v. “imperfect” justice? The shift from art to law, dealt with in the preceding pages, justifies a further sub-heading, the present fourth theme. This is particularly important when one compares, as I have done, Divine justice (as depicted in the religious texts or works of art) on the one hand with its human version on the other. The differences immediately spring into view for they are stark and obvious and were discussed above in greater detail. A major reason for the difference, not thus far alluded to in this book, lies in the fact that in this work I compared the literature of yesterday with the law of today. This introduction of “time” as an essential element for understanding the chang384 Albert W. Alschuler, Law Without Values. The Life, Work, and Legacy of Justice Holmes (2000), p. 21.

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ing meaning of the words and notions explored in this book is implicit in this theme. We saw, for instance that what passes for “honour” for Count Gomes is not the same as that which Corneille, reflecting (as he must) his time, would have understood. This must suggest the dangers of clinging to absolute understandings of words or notions, for words acquire different meanings as times change.385 The ideas behind them may also be diluted and fade. The same goes for defying the will of the Sovereign King, given the religious qualities of kingship, accepted by many even up to the day when the French executed their King.386 The law’s change calls for an essay if not a volume of its own; and clearly this is not the place to attempt such a task. But two points, relevant to the themes discussed herein, must be flagged up for future consideration. 385 Thucydides explores this idea in one of his finest passages of his History of the Peloponnesian War, III, 82 ff. For an English translation, see Rex Warner, History of the Peloponnesian War, revised edition (Penguin Classics edition 1954), pp. 242 ff. Since much of this is little known to lawyers these days an extract can help illustrate the point made in the text and also the problems faced by citizens in times of political transition. The translations is by Rex Warner and is taken from the Penguin Classics edition, pp. 242 ff. “To fit with the change of events, words, too, had to change their usual meanings. What used to be described as a thoughtless act of aggression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely another way of saying one was a coward; any idea of moderation was just an attempt to disguise one’s unmanly character; ability to understand a question from all sides meant that one was totally unfitted for action…Anyone who held violent opinions could always be trusted, and anyone who objected to them became suspect. …Family relations were a weaker tie than party membership, since party members were more ready to go to any extreme for any reason whatever…Revenge was more important than self-preservation… Love for power, operating through greed and personal ambition, was the cause of all evils…Leaders of parties in the cities had programmers which appeared admirable…but in professing to serve the public interest they were seeking to win the prizes themselves.” This passage, no doubt the product of Thucydides the politician rather than the historian talking, is a true classic not only in the sense that it deserves to be re-taught some two thousand three hundred years after it was written but also because its message has such a contemporary ring. 386 Earlier, when Charles I of England, faced the same fate, he challenged the legitimacy of the Court to try him on a variety of grounds including this one.

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The first contains a warning. Put at its simplest it is this. That the human version of justice must track the evolving standards of equity and decency that take place in society cannot be in doubt. As such, it must accept evolution and be built around compromises. For if it does not, it will become isolated from reality and thus, ultimately, unworkable. But I do not see in this phenomenon a complete identification of human justice with the enacted law or prevailing fads of a particular society, for then we may fall into the trap of justice running the risk of spiraling downwards towards the depths that a deviant society may wish (or be “persuaded”) to attain. The National Socialist regime of 1933–1945 is an example; and that is not something that is compatible with any idea of justice. It is here, therefore, more than anywhere else, that the need for abstract, more moral, and more widely held precepts of behaviour is keenly felt. These precepts can, of course, derive from a religion or, better still, be based on commonly held values of the major religions. Alternatively, they can stem from the evolving consensus of moral philosophers, jurists, politicians and ordinary citizens. My guess is that the third way would produce results similar to those of the second, so, for me, it does not matter which way one goes. But whatever their derivation, they exist and, in their essentials though not in details, they must guide any system of human justice that is worth its name. Clearly, this need – shall we call it the need to safeguard from the self-destructing tendencies that humanity has been known to display? – is a topic worthy of more detailed consideration. For present purposes, however, it is sufficient to stress that: (a) one is conscious of the necessity to ensure that one does not lose sight of some basic and eternal values, and I would set prominently among them human dignity, which are essential to civilised existence387, and (b) make clear that meeting this need does not involve setting up an alternative system of justice, higher than human justice, detailed, and rigid, but just the defining in general terms of 387 Germans might call this core “Naturrecht” – indeed, art. 1(1) of their Consitution, which protects human dignity, is considered as an expression of such an eternal value.

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those minimal principles by which any legal order worthy of its name must abide. Even less does this framework I envisage here need an anthropomorphic God, performing miracles or responding to prayers. The rest must be allowed to evolve. The second observation relevant to rounding off my discussion takes the form of a simple attestation of fact. For, when looking at the material contained in this book we note that the law of today has greatly changed from the law of the time of Milton, Corneille, Mozart, and Goethe, and even more from many of the precepts of the Pentateuch. Changed and, as I have argued all along, improved, even though this does not mean that it is anywhere near perfect. This may (or may not) be linked to a change in general morality which, to the extreme annoyance of American neo-conservatives and the most conservative section of the Catholic Church, is more relative, more skeptical, less absolute in its creeds, and less confident that there is only one answer to every problem in this world. But it does reflect different values and, on the whole, I think they are better values, though, of course, others may disagree. Justice during the second half of the 20th century thus progressively became more “sensitized” to different conditions, plights, and feelings of humanity. It came to value equality a little more than liberty. In human rights it has made great strides towards greater tolerance; and even managed to separate, which was not easy, “sin” from “crime” on a whole range of issues ranging from illegitimacy, homosexuality, and abortion. In trying to (over-) protect the weak it may be challenging nature (as well as the “market”) – neither a good thing to do – but it has thereby moved closer to some of the ideas found in the Sermon on the Mount, arguably the most philosophical part of the Gospels. Human dignity, nowhere expressly mentioned in the French or American revolutionary document, came to head the Bill of Rights of the German Constitution388 and still colours its entire interpretation. 388 Though in substance it was already mentioned in the ABGB of 1811. I am grateful to Professor Koziol for drawing my attention to this text. For the latest restatement, see Art II-61 of the Treaty Establishing a Constitution for Europe.

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What happens with law also happens – and should happen – with great art. Understanding what the “creator” was trying to achieve is important in itself and is also important to help us understand his times. It adds a further and rich dimension to the more traditional way of studying history through archival material, diplomatic dispatches, economic surveys and the like. But finding in the play, painting, or piece of music themes and ideas which are particularly poignant for our own times represents a compliment to the artist and an accolade – perhaps the most significant – of the continued relevance and vitality of his work. These are not achievements to be hidden or derided; and I now revert to law, whose evolution I can trace with greater assurance. For achievements they are even if and when one, personally, entertains – as I do – doubts over details. Nor are the changes experienced by the law of a kind that can be stopped in their tracks. For these and other reasons I thus feel confident about the future, though I was always made to believe that confidence (and optimism) are mental states experienced more during the early rather than the later phase of one’s life. Criticizing our human system of justice is, these days, quite a common pass-time, as common as I believe it to be wrong. Such criticism can take on the form of unnecessary self-flagellation, and undermine an essential element of civilized society. I wish to encourage the opposite, knowing that to praise legal progress is not to deny that we still have to grapple with old problems and, even, confront new plagues that may be endangering further legal progress.

(e) Fifth theme: “good” or “bad” and the alternative of the ambiguous human being The previous thoughts lead us to the meaning of the key words of “good” and “evil;” and from the outset I warned about the nuances that accompany these notions and the tendency they have to co-exist in one and the same character, making “entirely perfect” and “entirely bad” persons (real and imaginary) the minority in this world and thus rendering absolute distinctions and —

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classifications unconvincing. This may, in part, explain why I consistently expressed a certain attraction for the so-called “bad” characters of literature. Perhaps some elaboration may be desirable. Though I have explained what I found interesting, even attractive, in these “bad” (or ambiguous) characters, and peppered my text with references to works of others who seemed to share the same views as I, something more has to be said to explain this phenomenon but also help bring together the many literary depictions of “bad” by very different artists writing during very different times. Such bracketing together is not, of course, without its dangers; but I for one see some connecting points, and feel bound to bring them out for the consideration of others. It may have been noticed that I italicized the word literary depiction of “bad.” For here I do not wish to go back to something already noted namely the depiction of “bad” in religious texts or its treatment by religious (i. e., revealed) law, both of which see matters in black and white terms and are surpassed in their absolute tones only by medieval literature and art, which propagated the image of the devil as a hoofed and horned creature depicted in red or blue colours (depending upon whether he was meant to be burning in fires or frozen in ice388a, as Dante’s Lucifer is). Nor do I wish to deny that pure, unadulterated, evil is not encountered in law – the murderer Simmons is such a person – and in literature – Marquise de Merteuil in Les Liaisons Dangereuses not reviewed in this essay,389 being obvious candidates 388a The idea of Hell being associated with fires may come from a suburb of Jerusalem where, in ancient times, the bodies of executed criminals were habitually burnt. The freezing image of Hell may be Zoroastrian in origin, though it has also been suggested that it may be linked to the last great ice age which ended around 10,000 years ago. According to the latest scientific theories this may have happened quickly enough to have allowed the survivors to create a collective memory of an era of huge suffering and deprivation. But whatever, the origin, the imagery is medieval. The ancient Greeks had no Hell, only a grim picture of the after world which served as a map for Virgil and, later, Dante. 389 For the reasons set out in Chapter One. Though she, too, may these days beginning to find authors who attempt at least to explain her behaviour. See, for instance, the passing comments of David Coward in his Introduction of Les Liaisons Dangereuses, (OUP Classics, 1998 paperback ed.) at p. xxx.

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for such a characterization. But if in terms of evil, these two – real and fictitious – reach the peak of “badness,” in terms of statistics they form a tiny minority of the phenomenon of “bad” in art, life and law. Most of those we have thus far described fall somewhere else on the scale from “pure evil”. I have called them “ambiguous.” The “bad” who fall into this last category are, invariably, gifted, confused, lonely, selfish, egocentric, and / or arrogantly ambitious. They are, quite simply, all “characters” endowed with good and less good – certainly annoying – qualities. This is true of characters who inhabit the world of literature. But they also include those who populate the world of law, judges included.390 On occasion you can, of course, argue, that these mixed qualities are introduced in a play or other work of art deliberately in order to help lead us in the end to discover the pure and “good”. This is a well tried way to lead one to one’s conception of “good” via a route that reveals evil. Professor Stanley Fish has done just that and done so with elegance and learning when analyzing Milton’s Paradise Lost. All these mixed qualities (as well as the potentially mis-understandable statements about evil) are thus there to make us realize our own sinful nature and thus encourage us to participate in our own reformation.391 Influential though Fish’s work has been in trying to bridge the unbridgeable gap between those who liked and those who degraded Satan in Paradise Lost, it leaves me in a state of doubt as to whether such an ultimately “religious” thesis as his can hold much appeal to a contemporary readership. I say this not only because the religious thesis is phrased in such absolute terms but also because the technical or literary arguments in its 390 I again thinking of Justice Holmes whom Professor Grant Gilmore, described in his Storrs lectures at Yale as “savage, harsh and cruel, bitter [a] lifelong pessimist.” Grant Gilmore, The Ages of American Law (1977), pp. 48–49. Living academic lawyers – judges and academic – are best omitted from this list. 391 This is taken (almost) verbatim from the new preface of the second edition of his classic work Surprised by Sin. The Reader in Paradise Lost (1997) but is not included in inverted commas since I have changed the tenses of the verbs.

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favour are largely based on an education which Milton’s contemporary readers might have had but modern readers simply do not possess. By switching Milton’s epic poem in that direction we are thus reducing not enhancing its appeal for we assuming and asserting that the values and views which prevailed at the time of the creation of that epic poem also should dictate our present day understanding and appreciation of the work. This is a possible stand-point; it is also plausible one. It should not, however, be considered as being either unique or exclusive of others. After all, it was Professor Fish, himself, who in another work392 admitted that “[interpretation is not the art of construing [the text in question] but the art of constructing...” But let us return to my “ambiguous” characters. My deep affection for humanity – which means taking (and appreciating) humans as they are, flaws and all – makes me “understand” these characters not only because I see in them parts of myself (and the most interesting people which I have encountered in my life) but also because I feel that I can recognize in their actions the grandeur and pettiness which all of us encounter (and, perhaps, attain) at some stage or other of our lives. Indeed, there is more than sympathy that one can feel for these fallen angels – even for the “Master” of them all – Milton’s Satan. For though he has fallen because of his ambition, restlessness, or ingratitude, he has only made a single mistake – a serious mistake or miscalculation to be sure, but a single mistake nonetheless – and now he is condemned forever. How many of us not done the same? Yet there is no redemption for Milton’s Satan; and even Lermontov’s Demon, less strong and less bad than Milton’s, who is equally capable of love393 and hate, is left in suspense, floating melancholically in the air, destroying even the woman he loves when he finally convinces her to let him kiss her. All this occurs because he is unable to decide whether to do “good” or “bad”. Lermontov’s Demon is thus not the religious outcast 392 Is there a Text in this Class? The Authority of Interpretive Communities (1980), at p. 43. (my italics.) 393 Not lust, as his grander counter part in Paradise Lost.

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of Genesis, nor the ambitious general of Milton – though the poem, of course, draws on this myth – but a confused 19th century Russian romantic who is sometimes bad, always ineffective, but often also well-intentioned. Even the devils thus come in shades. It is poets, most of all who have understood this; and we must not forget that it was poets most of all who praised Milton’s Satan. Turgenev’s Bazarov, who, as Rosemary Edmonds put it, “is the Lucifer figure who recurs again and again in Russian history and fiction”394 (back, again, to this idea of many Lucifers) also falls into this category of the “attractive baddie.” For though his creator, himself,395 tells us that he conceived him as “a somber, wild, half grown out of the soil, nasty figure,” he also adds to this list of attributes the words “huge, powerful, and honest.” It would seem that all unpleasant characters in world literature are thus huge, powerful and impressive, making one wonder whether authors are really doing nothing more than mirroring life. As already stated, Turgenev has, of course, been accused of concealing in his greatest novel his own true feelings towards the political ideas that underlie the struggle taking place between the two generations depicted in Fathers and Sons.396 No doubt, this must account for the hugely contradictory reviews that this work received after its publication and still does to this day. For Turgenev, as I hinted earlier on, though a religious, artistic and sensitive man,397 when it came to politics he chose to sit, as it were, on the fence. This is not because he was without sympathy for the radicals of his time; having seen his own mother

394 Introduction to Fathers and Sons (translated by her). Penguin Classics (1965; 1975) p. 69. 395 Letter to Sluchevsky, 26 April 1862, reproduced by Sir Isaiah Berlin in his Romanes Lectures in Turgenev’s Fathers and Sons (Penguin 1975 edition), p. 30. 396 The Russian title is Ottsy i Deti, which is best translated as “Fathers and Children,” thus signaling in a clearer way one of its central themes, the conflicts between different generations. For reasons I have not been able to discover, it has not prevailed. 397 And in Fathers and Sons, these moral or aesthetic values all are given his support.

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maltreat her serfs, he developed from early life a strong dislike for the (dying) institution.398 But he hesitated, in life (and in the book), to espouse openly their cause because he was also afraid of the ruthless way they were pursuing it.399 Some of Bazarov’s strongest lines about the importance of quantitative and scientific methods and the belief in the organization of life with the aid of technological organization reflect these fears and are thus expressed quite bluntly. It has to be admitted that they still sound frightening, not least because they also ring truer now than when they were written. Yet Bazarov is not the nihilist he proclaims to be (or is sometimes portrayed to be by others) for he is fighting for a cause. His struggle may end in defeat, not least because he has the fate of many warriors who are wasted because they were born ahead of their time. In intellectual terms, however, he must earn at least our sneaky admiration for his single-minded perseverance, even where the blunt and cruel nature of some of his pronouncements will have caused to most readers of the book outright shock. Most expert critics certainly attribute these feelings to his artistic creator. This may explain in part why Turgenev is not content to leave him with the image of a heartless crusader, insensitive even to his proud parents whose ever-lasting loyalty figures so movingly in the finale. The writer thus keeps some of his best shots for the end. For Bazarov, in his last exchanges with the only woman he 398 Clearly shown in a collection of short stories serially published in 1847 under the title Zapiski Okhotnika, apparently read by the Alexander II – the Tsar-Liberator – and “influencing him in arriving at his decision to proceed with the emancipation of the serfs in 1861.” See Turgenev Fathers and Sons. A Stressed Text with an Introduction and Notes by E. R. Sands (2nd ed. 1965), pp. viii–ix. Apparently, the censor who let this book slip “through the net” was obliged to leave the service! 399 Brutally brought out by Bazarov’s reply to the accusation that he is only interested in “destruction” not “construction:” “That is not our affair. (…) The ground must be cleared first.” See Fathers and Sons (Penguin 1975 edition) at p. 124. This may reflect Marx who, apparently, once remarked to one of his English friends, Professor Beesley, that “(A)nyone who makes plans for after the revolution is a reactionary.” Quoted by Sir Isaiah Berlin in his Romanes Lectures, Penguin edition of Fathers and Sons (1975) at p. 28.

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ever loved but who both matched his eloquence and spurned his love – Anna Sergeyvna Odintsova – he no longer comes across as the misguided and conceited young man of the earlier pages, but as a humble person who stoically knows that he is dying and who is, even, cruelly made to realize that his country may not, after all, have much use for people like himself. These concluding pages must thus be “one of the most beautifully understated scenes in literature”400 while reserving for Bazarov the end which his contradictory qualities of “good” and “bad” destined him for. Re-reading these last pages over and over again as I was writing this book made me feel that “good” and “bad” means just as much for the rest of us when it is used in connection with works of art. By that I mean that our evaluation of a work of art can and should proceed irrespective of the “good” or “bad” features of the characters that figure in its pages. Indeed, in this sense, Fathers and Sons is not just “good:” it is beautiful, justifying the accolade given to Turgenev as the “novelists” novelist.” So like a Rondo, I must keep coming back to at least one of the themes of the composition: the mixture of “good” and “bad.” For me these mixed elements are what make in so many cases the distinction of “good” and “bad” so fuzzy. In different ways, as they are found in different characters, and they make them all admirable (again in different ways), even if it also dooms them in the end. As I have suggested all along in this book it is surprising to see how often they are found in other “bad” characters of art as well – Faust, Don Giovanni, or Eugene Onegin – the last one being the central figure of Russia’s most influential poet: Pushkin. Whenever all this happens, it helps make all of the above characters all the more real, more believable, more tragic, and, for all these reasons, in my view more attractive than the “super perfect” heroes of Roman or French classicism. The same lack of attraction is, to persons like myself obvious with the downright black portrayal of “evil” in the propaganda literature of all monotheistic religions which accept the key division between “good”

400 Rosemary Edmond’s Translator’s introduction to Fathers and Sons (1965).

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and “evil.” For, by over-playing their hand in describing “evil” the way they do, while portraying God as “benevolent”, “merciful” or “plain good”, they make us suspect propaganda rather than discern a balanced assessment of the accused’s character. This, at any rate, is the relativistic direction I lean towards; and like it all the more since it, incidentally, also provides a bridge between the ways law and literature deal with our subject. But this point must be left to the next sub-section for further elaboration.

(f) Sixth theme: the character as a reflection of its creator’s real life experiences It is when we look at how each of these disciplines sees this common material and how it then treats it that we begin to find the differences. In this essay we have made a number of observations, some of which seem to be relevant to all the works of art considered (and maybe to others not here discussed). It might be useful to revisit them in summary form in order to tie together the themes they represent. In this book, the close link between the artist – author or composer – and the characters of his creative activity has been repeatedly noted. This is a manifestation of my first theme (closeness of life and art), and also of the fifth (rarely do we encounter “plain bad” and even more rarely “pure good”); but it is also relevant to this sub-heading. For the way an author (and, subsequently, the critic) shape one of his characters largely depends on how he, himself, reacted to problems he has encountered in his own life and how, in turn, he reacts to the work of art he is analyzing. In my opinion, this may also go a long way towards explaining why so many famous nineteenth century romantic poets felt such “sympathy” with Milton’s Satan and not Milton’s God. For their own turbulent lives and over-sensitive imagination dove-tailed more with the character features of the former than the latter. Milton’s Satan thus not only shows the toughness, despair, and frustration which his blind creator felt when writing his mas—

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terpiece. Above all, both seem to reveal the absolute determination to emerge from their personal disasters stronger than before. If they were special before disaster struck at both of them, they became exceptional afterwards. The question, of course, whether Milton abandoned politics and turned to religion after the fall of the Commonwealth has often been canvassed and, indeed, finds support even to this day. The reverse approach, that Milton’s political radicalism can be found encrypted in his epic has also had support since the days of Blake if not before. Other authors have discovered other aims, for instance education to help “make the people fittest to chuse, and the chosen fittest to govern.”401 As I said before, if one searches the text for lines to support any of these views one will find them – a conclusion, however, which has not pleased those critics with a strong religious bias. Yet whatever the overall stance one finally takes, and I do not suppose this debate will ever be resolved. Satan’s reactions in the poem are clearly those of a politician, not those of an introverted scholar or a proper “gentleman.” Thus, C. S. Lewis who, according to his latest biographer, “eschewed almost all contemporary culture (…) and was rather distrustful of politics and politicians”402 understandably seems to transpose this “unworldliness” in his judgments of Satan as a “political figure” and thus in elegant but “unreal” terms condemns his character as, essentially, consisting of “lies,” “propaganda,” and prone to “incessant autobiography”.403 This last description betrays, I feel, Lewis’ inability to understand the vainglorious political mind. Indeed, Milton often intrudes, himself, in his own texts – not just in Paradise Lost – as a historical narrator; and according to some authors the purpose of these intrusions is “self-advertisement

401 Thus Mary Ann Radzinowicz, “The Politics of Paradise Lost” in Kevin Sharpe and Steven N. Zwicker (eds), Politics of Discourse. The Literature and History of Seventeenth-century England (1987), pp. 204 ff. 402 Michael White and C. S. Lewis, The Boy Who Chronicled Narnia. A Biography (2005 Abacus edition), p. 88. Personally, I see this as a variant of the encrypted message approach. 403 A Preface to Paradise Lost (1942; 1961), p. 102.

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and self-justification.”404 To me that comes close to what Lewis is accusing Satan of doing; and this makes one wonder – if Milton was, himself, guilty of such habits, would he be seeing them as condemnable when shared by Satan? I cannot help but feel that Milton is writing here as a politician and is treating Satan as one, his religious feelings not withstanding. For why should the one displace the other? Humans, even of the exceptionally intelligent variety cannot always keep emotions and beliefs clearly separated. Milton, actively involved in the politics of his age, was thus also aware of the need, inherent in politicians of all times, to adjust to changing circumstances. The dividing line between “adjustment” and “opportunism” can, of course, be difficult to draw. Even if one takes the view that by the time Milton was completing his masterpiece his political cause was dead and he somehow had to trim his own behaviour to avoid persecution (which on the whole he did), he must have remained fully conscious of the fact that a “modest” politician is an oxymoron. He thus understands Satan’s character better when he imputes to him, to put it in contemporary terms, a desire always to make the headlines. It is this understanding that makes Satan’s character so real and believable, and Lewis’ explanation elegant, “gentlemanly,” but unworldly and thus unconvincing. The don who could imagine the Narnia stories could never understand the world of politics. But Milton could. This is obvious from the words, mainly favourable, that Milton puts in Satan’s mouth in the first two books. But it is also reflected in the fact that the poet shows Satan disliking royal (and ecclesiastical) pomp and tyranny. Because Milton, too, shares these feelings strongly, they are, again, reflected in Satan’s and Beelzebub’s pronouncements. In passages such as these Milton’s indisputable religious feelings thus seem to be overtaken by his beliefs as a politician. Indirect yet, to me, intriguing evidence of this comes from another (failed) politician but great literary stylist: FrançoisRené, Vicompte de Chateaubriand. For the latter sees Mil404 For instance, Earl Miller, “Milton and the Histories” in Kevin Sharpe and Steven N. Zwicker (eds.), Politics of Discourse: The Literature and History of Seventeenth-Century England (1987), pp. 181 ff. at 186.

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ton’s epic poem as essentially depicting the “infernal republic attempt[ing] to overthrow the celestial monarchy.”405 This more than reflects accurately Milton’s political views.406 It also echoes Chataubriand’s own experiences as a monarchist (and also a deeply religious man407), who lived through the French Revolution at its most anti-royalist and anti-clerical moments, and then found no gratitude in the restored monarchy which he longed to serve. Though politically on different camps, both men – Milton and Chateaubriand have enough in common – odd as it may seem to those who know more about their lives – for the one to understand the other quite well. Yet here, again, we must pause to consider two points raised earlier on but also relevant here. The first is whether we are to judge a work of art by looking at the picture or text, standing on their own, or are we allowed to draw on other observations (paintings etc) made by the (same) creator at different times? The second is even more closely related to the “time factor” for works which were composed over a period of time may also reflect their creator’s changing moods and views. Combined, these two points do not just raise the question / danger of repressing the limitless instability of language (which was to become such a central theme in Jacques Derrida’s Deconstructionalist School); it is a question of explaining the richness of these texts which provide evidence to construct almost every conceivable explanation about a character and the creator’s motives. You can thus change “schools” as you can change times or angles of analysis. They all come to

405 Sketches of English Literature (1836), quoted by John Milton-Paradise Lost, Authoritative Text Sources and Backgrounds Criticisms, edited by Gordon Teskey, W.W. Norton & Company (2005), p. 388. 406 Milton’s subtle if not changing republicanism is discussed, inter alia, by Blair Worden in his fascinating “Milton’s republicanism and the tyranny of heaven” in Gisela Bock, Quentin Skinner and Maurizion Viroli (eds.), Machiavelli and Republicanism (Cambridge University Press 1990; 1993 paperback edition), pp. 225 ff. 407 His Le Génie du Christianisme ou Beautés de la Religion Chrétienne, published in 1802 just a few days before the publication of Napoleon’s Concordat with the Pope.

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the same conclusion: the possibility of multiple interpretations. Only religion demands one and only one. Re-reading these texts – and I am no longer limiting my observations to Milton and his work – makes me convinced that this infinite variety of interpretations is possible in all the works I have looked at in this book and, indeed, it is this ambiguity of the lead characters that represents their creators’ greatest achievement since it enables us all to read (or observe, if they are pictorial works) their creations and subject them to endless interpretations. But I think there is more than that in this phenomenon. For, if we return for a moment to Satan and Paradise Lost, we see in his portrayal not just Milton’s republicanism shifting as the supporters of the Commonwealth progressively became disillusioned not only with the restoration but also their own failure to achieve reform, but also a psychological withdrawal not just from the world of politics into that of faith but also into one where the two become mixed and even confused. It thus becomes perfectly possible to see Satan as Milton’s like-minded republican must have seen Cromwell: admirably strong to begin with and destructively hypocritical by the end. If that is right it means that the kind of memorable simplifications coined by the likes of Chateaubriand can and, indeed, have been nuanced by the specialists in the field.408 But more than that: for by focusing on Satan’s slanted pride, rightly or wrongly, prompted by the Son’s sudden elevation to a “vice regency,” we are faced with ambition to advance and do better which, by today’s standards, may not amount to “badness” but an understandable manifestation of the kind of motive that makes all progress possible. Milton, like all other authors may thus be susceptible to more than one interpretation depending on whether judged by the standards of his time or looked at through the prism of ours. Earlier, I argued that both the author and librettist of Don Giovanni did the same in the eponymous opera. And the same is 408 See, for instance, Blair Worden’s thought-provoking “Milton’s republicanism and the tyranny of heaven” in Gisela Bock, Quentin Skinner and Maurizio Viroli (eds.), Machiavelli and Republicanism. Cambridge University Press 1990 (1993 paperback edition), pp. 225 ff, especially pp. 235 ff.

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true of Faust, the play, which went through many drafts over a period of time, and where the link with Goethe’s own (changing) character is supported by much evidence, external to the play. Indeed, many of Goethe’s characters are built around real people,409 often former objects of his affection.410 Just as Rembrandt repeatedly painted himself, Goethe, too, draw on his own complex character. Whatever literary critics may have to say about the shortcomings of these characters, they are all not only interesting, indeed often intriguing, but, more importantly, believable; and they are believable because they are real. To condemn them because they have immoral aspects, low motives, showed greed, restlessness, or ambition to rise, is to condemn life itself and everything that makes it tick, change, and move forward. It may also take too far the human – probably understandable – wish to expect, contrary to actual evidence, that professional greatness and success are not always combined with personal goodness and morality. Life may reveal shadows, indiscretions, improprieties and damnable desires; but it is wonderful and wondrous nonetheless. We impoverish it by trying to wipe them out. Even my “flawless” heroes come in so many hues and shades, each full of his own glaring short-comings,411 that one is here merely scratching the surface of a fascinating subject by looking only at a few examples. Yet it is these flaws that gives them dramatic depth, credibility, even appeal; for the greater their moral (or other) perfection, the greater the risk of their alienating our feelings and becoming, to some of us at least, rather too “good” for our liking. In short, it is these imperfections, suitably pre-

409 For fuller details one must consult, inter alia, Nicholas Boyle, Goethe: The Poet and the Age, Volume I: the Poetry of Desire, 1740–1790 (OUP 1991) and Volume II: Revolution and Renunciation, 1790–1803 (OUP 2000) – the fullest account of the poet’s life available in the English language. 410 Lotte Kestner and the Sorrows of Young Werther must be an obvious example and, indeed, later this became the theme of a revealing novel by Thomas Mann entitled Lotte in Weimar (1938, Eng. tran. 1940) by H. T. Lowe-Porter. 411 Achilles is an obvious illustration, which I mention so that the reader can reflect further on the wider applicability of my concluding thoughts despite the fact that this book has not been able to be more inclusive in its examples of world literature.

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sented – and perhaps even exaggerated by the artist – that help make for great art, unforgettable images, and characters worth immortalizing. Corneille, as we saw, does not neglect these human aspects in his play (though Virgil’s obsession with his political message may, at times, tempt us to forget them). His, in any way, is a world so imbued by the classical Roman notions of civic duty, particularly missed during moments of civil turmoil and austerity that leaves little room to emotions. This strikes me as being less pronounced in Corneille, where the allusions to the love which the two heroes feel for one another are thus frequent and often tenderly expressed. For a moment Cid even contemplates allowing himself to get killed in the duel so as to give expression to such feelings towards Chimène – a romantic gesture that many a 19th century writer would probably love to have invented himself. Indeed, at the end of the 1637 version of the play the poet even allows Chimène to reveal that her love for him was never extinguished, despite her understandable grief and her contrary pronouncements. Donna Uraqua’s unrequited love adds a further dimension not only to the value of human emotions but also to the idea of “wasted love,” so rare and precious a commodity, especially in the very harsh world of the play (and of today?). Love so described is human; and not only does it provide one with a description of the polar points of the clash of duties troubling the heroes; it also makes this clash heart-wrenching as well heroic. The link between authors and characters is, if anything, even closer when we look at the Russian literature of the 19th and 20th centuries. For here we find that the two – author and character – have many common feelings and attributes; their similarities can even extend to their ailments, for instance, epilepsy. Just as important is the almost consistently “unhappy” family backgrounds that most of the Russian authors had, leading to a wide range of frustrations and psychological traumas, echoed again in many of their characters. The link between the author and his political environment is also constantly reflected in his works. The 19th century intellectual divisions between “westernisers” and “slavophiles” is constantly evident in their works. The reader of Fathers and Sons, for —

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instance, may be surprised to note how often the characters of the play refer to writings by German authors, by no means only writers but also scientists of various kinds; and in Turgenev’s earlier and shorter work Faust412 we find a regular motif of his works: a literary communication between the narrator and the heroine of the book which involves the reading or declaiming of a book – usually German.413 To begin with, the reading of such works can be educational and thus motivated by the desire to do good. But as the spiritual awakening progresses, the narrator becomes emotionally attached to the heroine and, finally, is “charred by the flames he has ignited”414. In keeping with the character of the “superfluous” hero the dénouement is, invariably, sad or even catastrophic. In the Russian literature of the time between the two Wars we find not only the desire to shape it to reflect the new political ideology but also the determination to use it to bolster the dominant political thought. Noting this intricate inter-linking is not, of course, new, though it is surprising to see how strong it is. But this awareness also has a “negative” or “opposing” side and that is that works of art which ignore this relationship are less likely to appear to us believable. In law, as well, we encounter constantly this clash of values or interests; and how they are resolved may depend not only on rules but also other factors such as judicial mentality, outlook, training, wider political beliefs, and values, all of which have, once again, been studied more in the United States than in Europe. We might often wish that one triumphed over the other; and that is why, frequently, we may criticize a particular judicial decision even though often the result we condemn is not due to the judge who decides it but the texts given to him to apply. Yet, in a wider sense, the result – even a bad result – matters less (at least for the general public) than the fact that the balancing exercise took place at all. What matters more, ultimately, is the realization that the attainment of 412 Translated by Hugh Alpin (2003). 413 This happens in Rudin (1856) and Asya (1858) where not only Faust but also Hermann and Dorothea figure among the list of books read. 414 Turgenev, Faust (2003). Foreword by Simon Callow, p. xi.

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perfection is not possible, that plain, complete and un-adulterated “badness” is rare; and it is this realization which, among other things, dictates that the balancing must be carefully done and remain under control. For Goethe was so right when he made God tell Mephistopheles that “man must strive and striving he will err.” The result is constant compromise; and compromises tend to last longer than triumphs because they leave both sides half-satisfied. So, because the perfect, invariably, escapes our comprehension while the mundane is not only forgettable but should also be forgotten, humanity with all its contradictions is all that we are left with. A good artist is, always, conscious of the contradictions found in human characters, especially those who we would call “great men or women.” That is why, and despite the fact that most if not all of those whom I have examined here were good Christians, they have never painted their characters in the black and white terms so favoured by religion. Ambiguity is thus the name of the game; multi-faceted characters the end product. We have seen this in the characters of our main three works; and it is particularly pronounced in the characters of the 19th century Russian novel. These may be “superfluous men,” as they came to be branded; but in their ambiguity lies a prime reason why they are, in literary terms, so fascinating. It is therefore once again tempting to suggest that in them we see how “bad” mutates into “good” and vice versa as the two notions meet in the middle and turn black and white into gray. In stating, exploring, or even exaggerating both the strong and weak parts of a character, the good artist is not only creating, as life does, “ambiguous” characters; he is also giving us evidence in his work that will enable us to continue the debate he has started by arguing both ways, adapting, up-dating, and modernizing the understanding of his work. I have heard learned people refer to Virgil making Aeneas the hero of the modern peregrinating homeless and disposed. I doubt that with his Roman focus this could have been a prime thought in his mind. But does not this make his work modern and, at the same time, eternal? Or should we exclude it categorically because some literary expert can convince us that it was, indeed, absent, from Virgil’s mind? —

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It was Anton Pavlovich Chekhov who once said that “a writer’s business was not to provide solutions, only to describe a situation so truthfully, do such justice to all sides of the question, that the reader could no longer evade it.”415 Though I do not think that Milton’s work falls into Chekhov’s category, the fact is, as we have noted over and over again in this essay, that it has been scrutinized for evidence of where the poet really stood on the question of God and Satan. Most authors give God the day.416 But, as we have already noted, there is also a sizeable and important opposing view; and, I think, there is enough in Milton’s life to explain why Satan is, initially at any rate, given such grandeur. But whichever view one takes, the ambivalence cannot be totally avoided. There is another reason why literature and art must go down this road. A work of the human mind that brings this element of humanity to the surface is bound to please, not just impress or convince. A reader who compares Satan’s rhetoric in Books One and Two and compares them to God’s calm logic in Book Three will have no doubt – in my mind at least – which he will prefer; and he will not “care a fig” if Aristotle ranked rhetoric below logic. This is true of literature and it is true of law; and it is a point I have chosen to stress not only because I think it is important but also because it is close to my heart. In his judicial work, Lord Denning for example did this in a superb manner.417 The result was that he not only crafted some beautiful judgments but also

415 Cited by Sir Isaiah Berlin in his Romanes Lectures, reprinted in the Penguin edition of Fathers and Sons (1965; 1975), p. 57. 416 In this sense Professor Barbara K. Lewalski, who’s The Life of John Milton: A Critical Biography (2000), Chap. 13 must surely be seen as the most authoritative single volume biography of the poet. 417 His judgment in Beswick v. Beswick, [1966] 1 Chap. 538 (C.A.), starting with that memorable depiction of “old Peter Beswick,” is, for me, not just a literary masterpiece but also an excellent illustration of the point made in the text. For a fuller discussion of the judgment along these lines, see Dennis R. Klinck, Criticising the Judges: Some Preliminary Reflections on Style, 31 McGill L.J. 655, 680–81 (1986).

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showed us what other judges try to conceal, namely that humane sympathy and empathy can help decide a case which does not (and should not?) just be seen as depending on a mechanical application of precedents (though this is true for the run of the mill cases). His humanity distinguishes him sharply from the cold self-centered nature of Holmes. All the themes of this book converge on this idea, which makes it not only the cardinal theme but also turns my thesis into a kind of celebration of humanity because of and not despite its imperfections. Homer, it seems to me, felt the same way and expressed it to perfection. As Alexander Pope put it so aptly, he achieved his success because he used “all the inward passions and affections of mankind to furnish his characters.” And we know they were everything but perfect!

(g) Seventh theme: the ambiguous nature of humans Religion has always wished us to see things in black and white colours, for which read “good” and “evil.” That is not only so in the Christian religion but also in those which preceded it (e. g., Zoroastrism) and from which it borrowed various elements including the idea of perpetual conflict between “good” and “evil.” This, of course, stands in stark contrast with the pagan world which, while it believed in malevolent spirits, had to be placated as much as the Gods. In that sense, “evil” received if not respect then certainly as much attention as “good” – with the result that the texts which deal with pagan conceptions of “good” and “evil” lack the strident and uncompromising attacks on “evil” so common in the Christian texts. Political regimes based on strong ideologies have also adopted a similar posture. In moments of transition and uncertainty, replete with old and new forms of danger, the slogan “if you are not with us you are against us” holds out some appeal. And if you are not with us, you belong to the “evil” ones. The Holocaust, the Stalin purges of the 1930’s, and some of the barbaric incidents that contemporary terrorism has clocked up on its youthful record, must surely demonstrate the human ca—

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pacity for evil;418 and ordinary lawyers who have to deal with murderers and – even – contemporary cannibals, have their individual stories to add to these dark events of history alluded to above. Yet religion, which along with the ancient Greek myths gave art so may of its themes, by painting life in such strong and contrasting tones can also undermine tolerance, weaken our ability to see things as they are, understand (or at least try to understand) complex events which, because of our own mistakes or insensitivity, can sometimes get totally out of control. I cannot prove, but do assert, that in the vast majority of cases our world and those who inhabit it (and their imagination) tend to be much more nuanced, subtle, and indeed ambiguous. By this I mean that more often than not, good and bad are presented to us in shades and mixtures; the one can easily slide into the other; what one sees as bad or unexciting or unattractive or useless can be seen by others in a different light, making allowances for it, learning to react to it with compassion, forgiving it, and perhaps even secretly admire it. The little we said about Goncharov’s famous “character” Ilya Ilyich Oblomov shows how complex a work of art can be, drawing, imitating and yet also distinguishing it from other works of art (in this case Goethe’s Faust) while also advancing its own thesis. The result is that different scholars can see such characters differently, ranging – in the case of Oblomov – from a complete sloth of a dying era to a saintly exemplar of modern Christianity. But is not sloth one of the deadly sins and thus “bad”? We have already seen how Oblomov’s other vice – gluttony – has been explained away by “revisionist” writers with not a little help from experts on religious texts. The same has been done of his sloth, as the same writers prove when they write:419

418 For the view that “evil” and its historical appearances must be seen as a result of the exercise of human freedom see Rüdiger Safranski, Das Böse oder das Drama der Freiheit (2001). 419 Yvette Louria and Morton I Seiden, “Ivan Goncharov’s Oblomov: The Anti-Faust as Christian Hero,” Canadian Slavic Studies III, no. 1 (1969), 39 ff. at 63–64 (footnote references omitted).

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“(…) (A)ccording to Christian tradition, sloth is not the refusal to engage in work of physical activity. It is, as Dante observes, something quite different. It is what one may perhaps describe as despair in the face of some spiritual good or truth which one has to achieve, but wills not to. And it is not a specific vice, but rather a circumstance of all other vices: a torpor in the presence of a spiritual good which is Divine. Sloth may no doubt contain the malice of mortal sin; it is directly opposed to charity; and it expressly violates the first and the greatest of the commandments: “Thou shalt love the Lord they God with thy whole heart.” But it has nothing to do with mere passivity in the face of work or physical labor. It is rather a lack of impetus to love one’s fellow man and to adore God.” The passage is quoted in full not only for what strikes me as brilliant ingenuity, revisionist writing, or original analysis – the reader can choose. More importantly, it shows us how “bad” can be turned into “neutral” if not “good,” and thus this absolute division between “god” and “evil,” found in our religious tradition, is rarely encountered in an absolute and not transmutable form. Just as significantly, we encounter here a phenomenon we find with other terms such as “history,” which can refer either to the “course of events” (which are not always objectively ascertainable) or the accounts of those “presumed events” by historians. The same could be said to apply to “good” or “bad,” as they were (or originally understood at the time when the characters in question lived or were invented) and as they are seen by subsequent commentators. Are they vague to begin with? Do they change with time? Or are both statements correct? Milton’s Satan is another example. Though no one has ever even tried to call him “saintly,” he has earned much praise and caused even greater controversies. The masterly composition of the text, especially if read bearing in mind contemporary history, politics, and a good dose of psychology of its creator, can yield all sorts of interpretations. That many can be rejected at the end is not the point; what is significant is that they are arguable, since almost all can find some support in the text, itself. And such —

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readings, once again, blur the distinction of “good” and “evil,” even in a work of art such as this which, in a sense, is talking about the supreme forms of “good” and “evil.” In the view of this author, the world of literature or, rather, the small but significant part of it which was examined in this essay, provides evidence to support further the views he is putting forward; and the “relativistic” attitude they urge us to adopt in our analyses and evaluations of what amounts to “good” and “bad” also has the incidental advantage of helping us bring literature and the world of law together since law – modern law at any rate – is always trying to reach balanced judgments and avoid to see the world in black and white terms. From Odysseus, Sophocles’ Oedipus, Sir Lancelot and Sir Tristan in the Arthurian legends, Shakespeare’s Hamlet,420 Othello or, even, Brutus in Julius Cesar, to Milton’s Satan, Mozart’s Don Giovanni, Goethe’s Faust, Turgenev’s Bazarov, or Goncharov’s Oblomov421 we thus find “characters,” real or imaginary, who have good and bad qualities, who can be decisive and also confused, who can be kind and yet also cold and brutal – who are, in one word, mixtures or, as I called them above, ambiguous. They are great or have aspects of greatness but they are also flawed, far from perfect. Why should we try and see them and – worse – then present them to our readers or our students in any other way? But why should these features makes them less intriguing, perhaps, even less admirable? Were not their creators similarly mysterious, contradictory, and ambiguous, with souls unfathomable to ordinary perceptions and incapable of being classified in the plain terms of “good” or “bad”? Religion or political ideology may wish us to see the products of art and literature in iconic shapes, but this is not how it works in practice. Indeed, we saw what happened to Russian literature when the state moved from condemnable censorship to its damnable effort to impose a standard model of what was “good” and what was “bad” and telling its artistic creators how to externalize their genius. 420 Who, incidentally, along with Goethe’s Faust proved one of the most enduringly influential figures in other literatures, for instance, the Russian. 421 And, of course, his foil, Stolz.

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There is another side to this relativism and moderation which I preach. It touches upon the wider struggle between “being” (Sein) and “becoming” (Werden), and asks which way reaches “good” safer and quicker. Though I have made my own preferences clear, I do not suppose there has been – or will ever be – one clear answer to this dilemma. I think the search for the answer must be left to individuals and to their respective temperaments, and that it should not be imposed upon them by others, be they entities or other, “dominant” individuals. I am, of course, referring to the rather small number of people who might become pre-occupied by such issues and not the vast majority for whom the toil for their daily bread leaves them no time for speculation or reflection. This, however, is precisely the weakness which religion (and sometimes the state or other pressure groups) exploit by trying to do the thinking for us. All of this leads us to our postscript. This may be somewhat of a narrow way of ending a book with a broad sweep. Nonetheless, not only does it tie in with what I have already said – it is also of huge import to my world: academe.

(h) Postscript: the gathering clouds God (if and however one believes in Him) and “good” seem always to be far and difficult to reach; “bad” and “evil” are just around the corner and easier to encounter and – in most cases – even to understand (though not as easy to forgive). With this in mind, I would now like to end this book with a special kind of “evil” which is evident in contemporary writings, is showing up in the contents and phrasing of legislation, but is mainly casting a long shadow over intellectual life in general, and academic life in particular. As we shall see, though I call this “new” it bears some resemblance with the phenomenon experienced in Soviet Russia in the 1920’s and 1930’s (and beyond) discussed in Chapter VII, even though it lacks (at present) the ferocity of its predecessor and, above all, the state imprimatur. That is one of the reasons why I wish to draw attention to it and make sure that the new version is not allowed to become as menacing as the old since —

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many, especially outside the academic world, would already find it effects quite oppressive. I am thinking of the militant422 forms of political feminism which is closely linked to the political correctness movement. Before I offer some personal reactions to these schools of thought I must ask the reader to recall that “evil” (or “bad”), as I have stressed time and again in this book, comes in infinite shapes, forms, and hues, ranging from murder, treason, rape, incest, seduction, greed, ambition, betrayal, incessant restlessness, selfishness, and oppression of free thought. This list can be greatly expanded. Indeed, in an interesting and wide-ranging study, Professor Feinberg has drawn attention to this idea of “shades of evil;”423 and in it he also made it clear, as I have in this book, that, at times, one can conceive “evil” without necessarily bringing morality into the picture. It is not only “evil” that comes in different forms; the way writers have coped with it or depicted it has been varied. In an imaginary scale ranging from black or white, militant political correctness and feminism lie, I suppose, in the gray area, since they are not universally perceived as “evil” and one can easily think of behaviour which is much more reprehensible than the voicing of militant views, often reached through despair or frustration. Indeed, the breadth and depth of this literature424 attests 422 I italicize the word to militant in the hope to minimize – though I am sure I will not succeed to eliminate completely – misunderstandings of my thesis. For to the extent that political correctness (in all its forms) asks us to revise constantly our views about life in law in the face of an ever-changing society I find it acceptable. The latter – feminism – I even welcome. For I rejoice in its success to reverse centuries of prejudicial treatment of women by law and life. 423 A theme explored by Professor Joel Feinberg in chapter six of his Problems at the Roots of Law: Essays in Legal and Political Theory (OUP 2003). 424 This is as good a point as any to state that extensive citation to it was not thought necessary for the purposes of this book. A glance, however, at the bibliographical references given in, for instance, Rockwood “Introduction: On Doing Law and Literature”, in Law and Literature Perspectives (Bruce Rockwood, ed.) (1996), pp. 1, 20 ff will confirm my point. The growing acknowledgement of this school of thought by Law Reviews is illustrated by Arthur Austin, “The Top Ten Politically Correct Law Reviews”, 1994 Utah L. Rev. 1319 ff. How vibrant this movement remains since these pieces appeared is a matter on which

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to its popularity among liberals inhabiting academic cloisters, even though one may be permitted to doubt how appealing its ideas are to practicing lawyers and ordinary citizens living in the real world. For my part I have no doubt that in its most extreme forms this phenomenon is not just unattractive; it can also cause harm in so far as it restrains thought, influences in a preemptive and restrictive manner human behaviour in total disregard of subjective values, decreases the intellectual and pedagogic impact of higher education, and does so across a wide range of human activity, not being limited to law or literature. That is a point of view; not everyone’s point of view; but it is a view which, especially in the land of the First Amendment, has just as much the right to be externalized as any other point of view. Expressing one’s opposition to the tenets of this movement and, just as importantly, to the way they are put forward, must not lead us to forget that there may be a perfectly understandable rational behind its genesis. In Chapter VII, for example, we noted how behind the birth of the (ultimately) oppressive Soviet Social Realism was the understandable wish that a world-changing event such as the Russian Revolution should be given its own literature. We also stressed how some scholars have argued that the tenets of this movement were not only imposed from above but found wide acceptance, at the base of society. In other parts of this book, I expressed a similar mistrust for the religious texts which try to force my thought into a particular shape. As far as feminism is concerned one cannot and should not deny the unacceptably discriminatory treatment accorded to opinions may differ. My impression is that its appeal has peeked; and I return to the point made in the text above namely, that its impact on practising lawyers and judges is miniscule. Ian Ward’s Law and Literature. Possibilities and Perspectives (1995) provides in chapter six a survey of the birth and growth of feminist literature and the law which is not only commendably measured and scientific in its tone – what else could one expect from a monograph published by the Cambridge University Press – but also has the unique advantage of presenting the un-initiated reader with a clear contrast between the distinctively political nature of American writings designed “to unsettle” and the French variant which has “concentrated more on the construction of texts as texts”.

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women both by older societies and their laws; the study of literature can help bring this out more clearly than any historical or sociological book.425 In educational terms, this had some serious consequences leading, for instance, many women from being denied access to institutions of higher learning or from some certain subjects – mainly scientific – on the grounds that their “study were more suitable for men.” Whatever the justifications for such attitudes may have been at the time they were invoked, they had clearly become spurious during the better part of my own life and career and one can only welcome their demise. But feminist studies in the USA have, as already hinted, acquired almost from the inception, political overtones. Reviewing some of the key texts on feminism, especially linked to legal issues,426 Professor Ian Ward427 has thus correctly chosen to emphasize how “Critical legal feminism [in the USA]…fits most comfortably with the wider political, rather than textual, movements in feminist critical theory…” 425 Jane Austen’s work can, fro instance, illustrate vividly the restrictive nature of women’s rights, property law and trust law in 19th century England. See, for instance, E. Hilderbrand, “Jane Austen and the Law”, 4 Persuasions, pp. 34–41 (1982); Sir Guenter Treitel, “Jane Austen and the Law”, 100 LQR, pp 549–86 (1984). Thomas Hardy’s accounts of women and adultery law in 19th century England is also illuminated in his Jude the Obscure on which see W. Goetz, “The Felicity and Infelicity of Marriage in Jude the Obscure”, 38 Nineteenth Century Fiction, pp. 189–213 (1983–84). Nathaniel Hawthorne touched upon the same subjects in his The Scarlet Letter on which see, L. Hirschman, “Bronte, Bloom, and Bork: An Essay on the Moral Education of Judges”, 137 Univ. Pa L. Rev. pp. 177–231 (1988); and, for a reply, J. Honnold, “Hirschman, Bronte, and Hawthorne on Law, Abortion and Society. Brava and Addendum”, 137 Univ. Pa. L. Rev., pp. 1247–50 (1989). See, also, Elizabeth Perry Hodges, “The Letter of the Law: Reading Hawthorne and the Law of Adultery” in (Bruce L. Rockwood, ed.) Law and Literature Perspectives (1996), pp. 133 ff. 426 Limiting them to a handful is a hazardous exercise but I would suggest the following: Kate Millett, Sexual Politics (1977); Catherine MacKinnon, Towards a Feminist Theory of State (1989), Robin West, “Jurisprudence and Gender”, 55 Univ. of Chicago L. Rev. 1072 (1988), and Susan Estrich, Real Rape (1987). 427 Law and Literature. Possibilities and Perspectives (1995), p. 126.

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sensation, or attract publicity, is unlikely to end up being convincing even if it originates in very intelligent people. This is so even when it is dressed up in Freudian apparel, so favoured in our times, in the belief that it, alone, is likely to attract the aura of “erudition.” This does not mean, of course, that “isolated” or “unusual” thought cannot one day become dominant thought; that a heresy may not one day acquire the status of orthodoxy; that the rebel may not one day become the ruler. I am thus not suggesting that such kind of thought should in any way be banned or discouraged simply because it is unorthodox. But I strongly suspect that most readers would agree with me when asserting that, in practice, for every one time in which this transition from “heresy” to “orthodoxy” occurs, a thousand other instances can be given where the “odd” thought remains isolated, without influence, and, ultimately, becomes forgotten. One must, therefore, attempt (here as indeed in almost all activities), a cost-benefit analysis and decide in each case where the line should be drawn. And one must, at the same time, feel free to throw away some of this writing as rubbish. To accept it, to dignify it with publication because it would be unfashionable to reject it outright, is “bad.” I also object to such speakers trying to silence me (or others like me) on the grounds of being biased or old-fashioned or plain wrong whenever I wish to exercise my right to argue – cogently I hope – my opposing views. I think the points I am objecting to can be seen in some of the writings of the most extreme representatives of radical feminism. Since this essay is not only about law, let me briefly give one or two illustrations of “excessive” reliance on imagination, dubiously supported by evidence and resulting in off-putting extremism. Among other things, it may help show how this new phenomenon is spreading its tentacles into the academic world and not only the law faculties which are my main concern. Take for instance Professor Susan McClary, a Harvard trained musicologist currently teaching at the University of California Los Angeles. In a piece published in 1994 in a gay lesbian journal, she tried to argue (so far as I know against all existing evidence) that Franz Schubert’s sexuality may have affected his —

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music.437 I am no musicologist and cannot determine the effect her strange musings have had on others; but the Wikipedia entry (not clear to me by whom it was written) certainly suggests that not “many critics (…) take her ideas seriously.”438 Certainly, I have never come across any historical or other evidence to have suggested that Schubert was a repressed homosexual as, I believe, she implies. A few years earlier the same author wrote this about Beethoven’s Ninth Symphony:439 “The point of recapitulation in the first movement of the Ninth is one of the most horrifying moments in music, as the carefully prepared cadence is frustrated, damming up energy which finally explodes in the throttling murderous rage of a rapist incapable of attaining release.” Statements such as these, tightly packed with words that show deliberately expressed strong views, might conceivably not only give the impression – (quite wrongly, of course, and not intended by the writer) that Beethoven himself harboured thoughts close to rape. But they also represent yet another example of the point made earlier on in this book, namely the “trained” or “professional” critic’s ability to separate himself entirely from the public he is meant to be educating. By allowing one’s imagination to run amok in such a way, one also lays oneself open to equally dubious Freudian types of interpretations that the followers of this school seem to invoke with great ease.440 Worse still, it takes the reader / listener away 437 “Constructions of Subjectivity in Schubert’s Music”, in Queering the Pitch: The New Gay and Lesbian Musicology (1994). 438 http: / / wikipedia.org?wiki?Susan_McCary’s_constructions_of_subjectivty_ in_Franz_Schubert’s_music (last accessed 27 April 2006). 439 “Getting Down Off the Beanstalk,” Minnesota Composers Forum Newsletter (January 1987), pp. 7 f (my italics). 440 This mania of feminists to place rape images at the basis of much of their thinking is truly disturbing when one considers the claim by Professor Sandra Harding of the University of Delaware that Newton’s Mathematica Principia could / should be seen as “Newton’s rape manual.” See The Science Question in Feminism (1986), p. 113.

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from the primary subject of his research or enjoyment, deprives him of the ability to enjoy a truly classic piece of music and, last but not least, also harms this school’s starting and worthy premise (viz. equality for women or people with different sexual predilections). Professor McClary, whose notoriety owes much to such statements, must have sensed the fact that she had overstepped the line with the above-quoted lines, for in a later work441 she backed down somewhat from such extreme formulations. The point, however, which I am trying to make has nothing to do with the musical analysis proposed. What I wish, instead, to suggest is that such extreme ideas, so extremely expressed, must be damaging to the movement, itself – including its starting premise, which I find valid and attractive, namely that the treatment accorded to women in law and life has for long been wrong and unfair, and that the time has come to rectify old injustices. Fifthly and finally, the movement harming itself is one thing; but when it begins to affect adversely the raison d’être of a university (the pursuit of excellence through knowledge), I think the harm becomes one that should begin to concern us all even more. For many universities, certainly law schools, this has meant increased pressure to redress the “imbalance” which once favoured so-called “black letter” law subjects. The result is a mixed blessing: good in the sense that it has enriched the law curriculum by enhancing inter-disciplinary work such as law and economics, not always sufficiently studied until recent times; but also bad in the introduction of the sui-generis idea of quotas in professorial elections, namely “one of yours in exchange for one of ours.”442 How such elected colleagues then work to spread their gospel was noted above: to me it seems “internally” – i. e., within the university system – efficient even if externally – i. e., vis à vis the outside world – it seems to encourage more disenchantment with the University world. 441 Feminine Endings (1991). 442 This is no place to consider yet another argument – finances. For money is not available in infinite supply, and in our times cost-benefit analyses must also be brought into these equations.

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To the extent that the above trendy ideas can motivate universities to make appointments largely (one hopes not solely) in order to achieve a balanced representation of different views, races, sexual predilections and the like, it can only contribute to the lowering of standards, not to mention the encouragement of unseemly “bargains” and “trade offs” that may take place between (politically and ideologically) rival academic camps, each trying to secure places for their respective adherents in their respective faculties. I have been far too long in the University world to believe – still – in the idea that professorial elections are not often pre-planned or the result of horse trading and this despite ever-growing efforts to convince the outside world that proper procedures have been observed. The lowering of standards is, in my respectful opinion, also produced when courses are introduced into the curriculum and credits earned as part of a professional curriculum on topics which strike me at least as “soft” options but which, again, one dares not criticize without the risk of bringing the heavens down. In my opinion, this danger is more pronounced in American law faculties, where the introduction of new papers is “free” and not subject, as it is in England, to content and quality controls by the faculty concerned. I have seen some of these adverse effects materialize in the course of my own professional life during the last forty years; and the citations given above show that this way of thinking – unsound in my opinion – is “penetrating” (and I wonder what some readers will make of this word) other faculties as well, besides law. On all these points I am, of course, aware that my views only echo a section of the community of any law school or, indeed, liberal arts department. I am also conscious of the fact that in being anxious to voice the views of others who share my concerns, I may also be guilty of over-simplifying a complex issue. Still, I feel I can to some extent attempt this exercise since the bulk of my readers will know full well what I am talking about, having experienced as I have the kind of courses that are nowadays offered in American (and increasingly) European institutions. Personally, I believe that the long term effect of —

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these changes will prove to be very costly; and that the cost will be that the education received at law schools (and colleges) will be less useful to the profession but also less worthy of proper scholarship. They are, in other words, a form of “evil” on that score as well. As I said earlier, the parallel with Socialist Realism may remain slight but I wish it did not exist at all. In any event, we must all work hard to ensure that it also remains faint. The only way to do this is by speaking up before it is too late. Such frankness may sound discourteous, and even tough. Yet I recall George Orwell writing “that intellectual honesty is a form of antisocial behaviour,”443 and I venture the thought that it may be constructive if it’s sole purpose is to contribute to a wide-ranging debate that calls for raising and not the lowering of standards in universities. In any event, I believe one must have the courage to stand by one’s views. So, if I regret anything, it is not the fact that I am daring to speak up but that I do not possess the descriptive powers of Milton to paint the picture that I see before me in the way he described Satan’s journey out of Hell to Eden. For the world of modern universities, buffeted by the winds of “political correctness” and over-regulation, is turbulent, cloudy, and no longer majestic, which is what the world of education should be! So, how does one react to such “evil” if one believes it to be destructive, as I do? Indeed, how does one react to any form of “evil” or injustice? The answer is calmly, moderately, through education and instruction in which, above all, one says what one thinks444 but others dare not express lest it affect their chances of promotion or, worse still, diminish the temporary popularity that “playing to the gallery” can bring. As Alexander Pope put it so memorably, one must thus say “what oft was thought, but ne’er so well expressed.” Is this too much to ask of humans? 443 “The Prevention of Literature” in Essays, op. cit. p. 330. 444 I have given my “technical” objections to post-modernism, a strange offshoot of “intellectual political correctness,” in my article “Understanding American Law by Looking at it Through Foreign Eyes. Towards a Wider Theory for the Study and Use of Foreign Law,” 81 Tulane L. Rev. (2006).

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Perhaps it is. But, then, was it not Milton who began his epic by extolling the need to “pursue things unattempted yet in prose or rhyme”?445

445 I. 16; or, as any Italian would be quick to point out, “Cosa non detta in prosa mai, ne in rima.” Ludovico Ariosto, Orlando Furioso (1532), Canto 1.2.

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Works referred to in this book A Alschuler’s, Albert W., Law Without Values. The Life, Work, and Legacy of Justice Holmes. Chicago and London: The University of Chicago Press, 2000. Althouse, Ann. “The Lying Woman, the Devious Prostitute, and Other Stories for the Evidence Casebook.” 88 Northwestern Univ. L. Rev. 914, 1994. Ariosto, Ludovico, Orlando Furioso. 1532. Austin, Arthur, “The Top Ten Politically Correct Law Reviews”, 1994 Utah L. Rev., 1319 ff. B Baudelaire, Charles, Les Fleurs du Mal (Enid Starkie, ed.), Basil Blackwell, 1966. Becker-Cantarino, Barbara, “Goethe and gender”, in The Cambridge Companion to Goethe (Lesley Sharpe ed.), 2002, pp. 179 ff. Benet, Diana and Lieb, Michael (eds.), Literary Milton: Text, Pretext, Context. 1994. Berlin, Sir Isaiah, “Introduction/Romanes Lectures.” Fathers and Sons. Turgenev, Ivan Sergeyevich. Penguin Classics, 1975. Blake, William, “The Marriage of Heaven and Hell.” Blake’s Poetry and Designs (Mary Lynn Johnson and John E. Grant eds.), W.N. Norton & Company, 1979. Bloomfield, Morton W., The Seven Deadly Sins: An Introduction to the History of a Religious Concept, with Special Reference to Medieval English Literature. East Lansing, MI: Michigan State University Press, 1952. Brown, Deming, Soviet Literature since Stalin. Cambridge: Cambridge University Press, 1978. Boyle, Nicholas, Goethe. The Poet and the Age, Volume I: the Poetry of Desire, 1749–1790. Oxford University Press, 1991. Boyle, Nicholas, Goethe. The Poet and the Age, Volume II: Revolution and Renunciation, 1790–1803. Oxford University Press, 2000. de Broglie, Gabriel, Prince de, “La language du Code civil”, Bicentenaire du Code Civil. Séance solonnelle du lundi 15 mars 2004. Bulgakov, Mikhail Afanasievich, Heart of a Dog (1925), translated by Frank Galatic 1998. Bulgakov, Mikhail Afanasievich, The Master and Margarita. Translated by Michael Glenny. The Harvil Press and Harper and Row, 1967; Vintage, 2004.

Works referred to in this book Bulgakov, Mikhail Afanasievich, The White Guard (1924). Translated by Michael Glenny 1995. Bulgakov, Mikhail Afanasievich, Le Roman de monsieur de Molière. Traduit par Michel Pétris, Gallimard, 1972. C Canivet, Guy, “Le juge entre progrès scientifique et modialisation.” RTD Civ 2005, 33–46. Cairns, David, Mozart and His Operas. University of California Press, 2006. Cardozo, Benjamin, The Nature of the Judicial Process, 1921. Castro, Guillén de, Las Mocedades del Cid. 1618. Chances, Ellen, Conformity’s children: An Approach to the Superfluous Man in Russian Literature. Slavica Publishers, 1978. Chapelain, Jean, Sentiments de l’Académie Française. 1637. Chateaubriand, François-René, Vicomte de, Sketches of English Literature. 1836. Chateaubriand, François- René, Vicomte de, Le Génie du Christianisme ou Beautés de la Religion Chrétienne. 1802. Chernyshevsky, Nikolai Gavrilovich, What is to be Done? (1863). Translated by Michael R. Katz 1989. Choderlos de Laclos, P. A. F., Les Liaisons Dangereuses (translated by Douglas Parmée and with an introduction by David Coward). Oxford World Classics, 1995, reissued 1998. Clark, Katerina, “Little Heroes and Big Deeds: Literature Responds to the First Five Year Plan.” Cultural Revolution in Russia, 1928–1931 (Sheila Fitzpatrick, ed.), Indiana University Press, 1978. Clark, Katerina, The Soviet Novel. History as Ritual, 3rd ed. Indiana University Press, 2000. Collini, Stefan, Absent Minds: Intellectuals in Britain. Oxford: Oxford University Press, 2006. Corneille, Pierre, The Cid, Cinna, The Theatrical Illusion. Translated by John Cairncross. Penguin Classics, 1975. Cranston, Ross, How Law Works: The Machinery and Impact of Civil Justice. New York: Oxford University Press, 2006. Curtis, J. A. E., Bulgakov’s Last Decade: The Writer as Hero. Cambridge: Cambridge University Press, 1987. D Dante, Alighieri, The Divine Comedy, Inferno. Italian text with translation and comment by John D. Sinclair. O.U.P. New York, 1931, 1961. Dawkins, Richard, Science and Faith. The Seventh Athenaum Lecture, 2004. Dent, Edward, J., Mozart’s Operas: A Critical Study. Oxford, 1947, 1962. Dobrenko, Evgeny, The Making of the State Reader. Social and Aesthetic Contexts of the Reception of Soviet Literature. Translated by Jesse M. Savage. Stanford: Stanford University Press, 1997.

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—

Works referred to in this book Domnarski, William, In the Opinion of the Court. University of Illinois Press, Urbana and Chicago, 1996. Dostoyevsky, Fyodor Mikhailovich, Crime and Punishment. Translated with an introduction and notes by David McDuff. Penguin, 1991. Dunlap, G., “Literature Studies in Law Schools”, 3 Cardozo Studies in Law and Literature, pp. 63 ff (1991). E Eckermann, Johann Peter, Gespräche mit Goethe, (1827). Insel Verlag, 1992. Edmond, Rosemary (Transl.), “Introduction to Fathers and Sons” Turgenev, Ivan Sergeyevich. Penguin Classics, 1965. Einstein, Alfred, Mozart: His Character, his Work (Engl. translated by Arthur Mendel and Nathan Broder), London, 1946. Ely, John, “Another Such Victory”. Constitutional Theory and Practice in the World Where Courts and No Different from Legislatures”, 77 Va. L Rev., 833 (1991). Empson, William, Milton’s God. London: Chatto and Windus, 1961. Estrich, Susan, Real Rape. Cambridge: Harvard University Press, 1987. F Fagles, Robert (Transl.) The Odyssey. Homer. New York: Penguin Books, 1997. Feinberg, Joel, Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford University Press, 2003. Fifoot, C. H. S., Judge and Jurist in the Reign of Victoria. London: Stevens, 1959. Fish, Stanley, Is there a Text in this Class? The Authority of Interpretive Communities. Cambridge: Harvard University Press, 1980. Fish, Stanley, Surprised by Sin: The Reader in Paradise Lost, 2nd ed., with a new preface by the author. Cambridge: Harvard University Press, 2003. Fitzpatrick, Sheila, “Cultural Revolution as Class War.” Cultural Revolution in Russia, 1928–1931 (Sheila Fitzpatrick, ed.), Indiana University Press, 1978. Flaubert, Gustave, Madame Bovary (1856). French edition: Garnier 1971, translated into English with an introduction by Geoffrey Wall, Penguin, 1992. Ford, John C., The Fundamentals of Holmes’ Juristic Philosophy’, 11 Fordham L. Rev. 255 (1942). Frank, Jerome (writing as Anon Y. Mous), “The Speech of Judges”, 29 Va. L. Rev. 625 (1943). Frank, Jerome, “Words and Music: Some Remarks on Statutory Interpretation”, 47 Columb. L. Rev. 1259 (1947). Freud, Sigmund, Die Zukunft einer Illusion. 1927. Frye, Northrop, The Return of Eden: Five Essays on Milton’s Epics. London: Routledge and Kegan Paul, 1965. G Getman, Jack, “Voices”, 66 Texas L. Rev. pp. 577 ff (1988). Gilmore, Grant, The Ages of American Law. New Haven: Yale University Press, 1977.

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Works referred to in this book Ginsburg, Evgenia Semenovna, Journey into the Whirlwind. Harcourt, 1975. Goetz, W., “The Felicity and Infelicity of Marriage in Jude the Obscure”, 38 Nineteenth Century Fiction, pp. 189–213 (1983–84). Goethe, Johann Wolfgang von, Faust (1806), English translation by Philip Wayne, Penguin Books, 1949. Gombrich, E. H., The Story of Art. The Phaidon Press, 11th. ed. 1966, 1967 re-print. Goncharov, Ivan Alexandrovich, Oblomov (1859). Translated by David Magarshack and with an introduction by Milton Ehre. Penguin, 1954. Gorky, Maxim, Mother. ed. 1922 (in Russian). Transl. by Margaret Wetlin. Univ. Press of the Pacific (2000). Gray, Peter, “The Father’s Revenge.” Don Giovanni: Myths of Seduction and Betrayal (Jonathan Miller, ed.), Baltimore: John Hopkins University Press, 1990. Gray, Ronald, Goethe: A Critical Introduction. Cambridge: Cambridge University Press, 1967. Gregg, Paul L., “The Pragmatism of Mr. Justice Holmes”, 31 Geo L. J. 262 (1943); Gross, Kenneth, “From Satan and the Romantic Satan: A Notebook.” Remembering Milton. Essays on the Texts and the Traditions (Mary Nyquist and Margaret Ferguson, eds.), Routledge, 1988. H Harding, Sandra, The Science Question in Feminism. Cornell: Cornell University Press, 1986. Harper, James Jr., and Oscar Gray, The Law of Torts, 2nd ed., Little, Brown, Boston 1986. de Heisterbach, Caesarius, Life in the Middle Ages. Translated by G. G. Coulton. Cambridge: Cambridge University Press, 1967. Heuston, R. F. V., Essays in Constitutional Law, 2nd ed., London: Stevens, 1964. Hilderbrand, E., “Jane Austen and the Law”, 4 Persuasions, pp. 34–41 (1982). Himmy, Armand, John Milton. Paris, 2003. Hirschman, L., “Bronte, Bloom, and Bork: An Essay on the Moral Education of Judges”, 137 Univ. Pa L. Rev. pp. 177–231 (1988). Hodges, Elizabeth Perry, “The Letter of the Law: Reading Hawthorne and the Law of Adultery”, in Bruce L. Rockwood, ed., Law and Literature Perspectives New York and London, 1996, pp. 133 ff. Honnold, J., “Hirschman, Bronte, and Hawthorne on Law, Abortion and Society” Brava and Addendum”, 137 Univ. Pa. L. Rev., pp. 1247–50 (1989). Huxley, Aldous, Brave New World. 1932. K Kafka, Franz, The Trial. Translated by Douglas Scott and Chris Waller and with an introduction by J. P. Stern. Picador, Pan Books, 1977. Kelly, Henry Ansgar, Satan, A Biography. Cambridge: Cambridge University Press, 2006.

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—

Works referred to in this book Kerman, Joseph, “Reading Don Giovanni.” Don Giovanni: Myths of Seduction and Betrayal (Jonathan Miller, ed.), Baltimore: John Hopkins University Press, 1990. Klinck, Dennis R,“Criticising the Judges: Some Preliminary Reflections on Style,” 31 McGill L.J. 655, 680–81 (1986) (Can.). L LaRue, L.H., “Solomon’s Judgment: a Short Essay on Proof.” 3 Law, Probability and Risk, pp. 13–31. Oxford: Oxford University Press, 2002. Lasser, Mitch, “Judicial (Self-)Portraits: Judicial Discourse in the French Legal System.” 104 Yale L.J. 1325 (1995). Leader, Zachary, and Michael O’Neill, eds. Percy Byshhe Shelley, The Major Works. Oxford: Oxford University Press, 2003. Leo, John, “PC: Almost Dead. Still Funny,” U.S. News and World Report, December 5, 1994, p. 24. Leopold Labedz, and Max Hayward, eds. On Trial. The Case of Sinyavsky (Tertz) and Daniel (Arzhak). London: Collins & Harvill Press, 1967. Lermontov, Mikhail Yuryevitch, The Demon. 1842. French edition: Le Démon. Elibron classics, 2005. Lermontov, Mikhail Yuryevitch, A Hero of Our Time. (First published in Russian in 1840). English translation by Paul Foote, Penguins 1966, revised ed. 2001. Levinson, Sanford, “Law and Literature”, 60 Texas Law Review, 373 (1982). Levinson, Sanford, and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader. Chicago: Northwestern University Press, 1988. Levinson, Sanford, and Balkin, J. M., “Law, Music and Other Performing Arts”, 139 U. Pa. L. Rev. 1597 (1991). Lewalski, Barbara K., The Life of John Milton: A Critical Biography. Malden, MA: Blackwell Publishing, 2000. Lewis. C. S., Essay Collection. Literature, Philosophy and Short Stories (Lesley Walmsley, ed.), Harper Collins, 2002. Lewis, C. S., “A Preface to Paradise Lost.” Paradise Lost. John Milton. Oxford: Oxford University Press, 1942, reprint 1961. Lieb, Michael, “Two of Far Nobler Shape: Reading the Paradisal Text.” Literary Milton: Text, Pretext, Context (Diana Benet and Michael Lieb, eds.), Pittsburg: Duquesne University Press, 1994. Lipking, Lawrence, “Donna Abbandonata.” Don Giovanni: Myths of Seduction and Betrayal (Jonathan Miller, ed.), Baltimore: John Hopkins University Press, 1990. Llewellyn, Karl N., “A Lecture on Appellate Advocacy.” 29 U. Chi. L. Rev., 627 (1962). Louria, Yvette, and Morton I. Seiden, “Ivan Goncharov’s Oblomov: The AntiFaust as Christian Hero.” Canadian Slavic Studies, 3 (Spring 1969). Lucey, Francis E., “Holmes – Liberal – Humanitarian – Believer in Democracy?”, 39 Geo. L. J. 523 (1951).

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—

Works referred to in this book M Mac Donald, Heather, “Rule of Law: Law School Humbug”, The Wall Street Journal, November 8 1995, p. A21. MacKinnon, Catherine, Towards a Feminist Theory of State. Cambridge: Harvard University Press, 1989. Mahoney, Dennis F., “Autobiographical writings”, in The Cambridge Companion to Goethe (Lesley Sharpe, ed.), 2002, pp. 147ff. Mann, Thomas, Lotte in Weimar Bermann-Fisher 1940 (Engl. translation Secker & Warburg, 1940) by H. T. Lowe-Porter. Markesinis, Basil, “The Comparatist (or a Plea for a Broader Legal Education)”, in The Yearbook of European Law (1996), reprinted in Foreign Law and Comparative Methodology: A Subject and a Thesis (1977), pp. 15 ff. Markesinis, Basil, and Hannes Unberath, The German Law of Torts: A Comparative Treatise, 4th ed. Oxford, Oregon: Hart Publishing, 2002. Markesinis, O’Cinneidy, Fedtke, and Hunter-Hennin, “Concerns and Ideas about our Developing Law of Privacy (and how Knowledge of Foreign Law Might be of Help),” 52 The American Journal of Comparative Law 133 (2004). Markesinis, Sir Basil, Hannes Unberath, and Angus Johnston, The German Law of Contracts: A Comparative Treatise, 2nd ed. Oxford, Oregon: Hart Piublishing, 2006. Markesinis, Sir Basil, “Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding Recourse to Foreign Law,” 81 Tulane L. Rev. 1325 (2006). Markesinis, Sir Basil, “Understanding American Law by Looking at it Through Foreign Eyes. Towards a Wider Theory for the Study and Use of Foreign Law,” 81 Tulane L. Rev. (2006), pp. 1–63. Markovits. Richard S., Matters of Principle. Legitimate Legal Argument and Constitutional Interpretation. New York: New York University Press, 1998. Mays, Milton A., “Oblomov as Anti-Faust.” Western Humanities Review, 21 Spring 1967. McClary, Susan, “Constructions of Subjectivity in Schubert’s Music.” Queering the Pitch: The New Gay and Lesbian Musicology (Philip Brett, ed.), Routledge, 1994. McClary, Susan, “Getting Down Off the Beanstalk.” Minnesota Composers Forum Newsletter (January 1987). McClary, Susan, Feminine Endings. University of Minnesota Press, 1991. Melville, Harman, Billy Budd, Sailor. Edited from the Manuscript with introduction and notes by Harrison Hayford and Merton M. Sealts, Jr. The University of Chicago Press, 1962. Miner, Earl, “Milton and the Histories.” Politics of Discourse: The Literature and History of Seventeenth-Century England (Kevin Sharpe and Steven N. Zwicker, eds.), University of California Press, 1987. Miller, Jonathan, Don Giovanni: Myths of Seduction and Betrayal. Baltimore: John Hopkins University Press, 1990. Millett, Kate, Sexual Politics. London: Virago, 1977.

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—

Works referred to in this book Milosz, Czeslaw, “Introduction to the English Translation.” On Socialist Realism. Andrei Sinyavsky. University of California Press, 1982. Milton, John, De Doctrina Christiana. 1825. Milton, John, Doctrine and Discipline of Divorce, 2nd ed. 1644. Milton, John, Paradise Lost. 1667. Milton, John, Paradise Lost, Authoritative Text Sources and Backgrounds Criticisms (Gordon Teskey, ed.), W.W. Norton & Company, 2005. Milton, John, The Reason of Church Government. 1642. Molina, Tirso de, El Burlador de Sevilla y convidado de piedra. 1630. Moshinsky, Sidra Kranz, “Literature of the Holocaust: The Testimonial of the Witness”, in The Happy Couple. Law and Literature (J. Neville Turner and Pamela Williams, eds.), 1994. Mozart, Wolfgang Amadeus, “Don Giovanni.” (Libretto by Lorenzo Da Ponte) 1787. N Nadal, O., Le Sentiment de l’amour dans l’oeuvre de Pierre Corneille. Paris, 1948. Newlyn, Lucy, Paradise Lost and the Romantic Reader. Oxford: Oxford University Press, 1993. Nurse, Peter, ed., “Introduction in the Blackwell French Texts.” Le Cid Pierre Corneille. Edited with an introduction, notes and variants. 1978, 1988. Nussbaum, Martha, The Fragility of Goodness. Luck and Ethics in Greek Tragedy and Philosophy. Cambridge University Press, 1986, revised ed. 2001. Nussbaum, Martha, Poetic Justice: The Literary Imagination and Public Life. Boston: Beacon Press, 1995. Nussbaum, Martha, Love’s Knowledge: Essays in Philosophy and Literature. Oxford University Press, 1990. O Olsen, Frances, “The Drama of Comparative Law.” 21 Utah Law Rev. 275 (1997). Orwell, George, Animal Farm. Penguin, 2000. Orwell, George, “Lear, Tolstoy, and the Fool.” Essays. Penguin, 1970, reprint 2000. Orwell, George, Nineteen Eighty-Four. 1949, Penguin edition, 1954. Orwell, George, “The Prevention of Literature.” Essays. Penguin, 1970, reprint 2000. P Papanikolaou, Panagiotis, The Faustian Agreement. 2004 (in Greek). Pascal, Blaise, Pensées. 1669. Pasternak, Boris Leonidovich, “An Essay in Autobiography.” Poems 1955–1959 and An Essay in Autobiograpy. Harvill Press, 1990. Peters, Ann, and Schwenke, Heiner, “Comparative Law Beyond Post-Modernism.” 49 Int. and Comp. L. Q., 800 (2000).

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247

—

Works referred to in this book Posner, “Law and Literature: A Relation Reargued”, 72 Va. L. Rev. 1356 (1986). Posner, Richard, Cardozo: A Study in Reputation. Chicago: The University of Chicago Press, 1990. Posner, Richard A., Judge. Law and Literature. Harvard University Press, 2nd ed. 1998. (The first edition of the book in 1988 also carried the subtitle: A Misunderstood Relation). Pushkin, Aleksandr Sergeyevich, Eugene Onegin 1837. Translated by James E. Fallen. O.U.P. 1995. Puttfarken, Thomas, Titian & Tragic Painting. Aristotle’s Poetics and the Rise of the Modern Artist, Yale University Press, 2005. Q Quintilian’s Institutio Oratoria (Loeb ed. tr. by H. E. Butler), 1977. R Radzinowicz, Mary Ann, “The Politics of Paradise Lost.” Politics of Discourse. The Literature and History of Seventeenth-century England (Kevin Sharpe and Steven N. Zwicker, eds.), University of California Press, 1987. Rajan, Balachandra, Paradise Lost and the Seventeenth-Century Reader. Chatto & Windus, 1947, reprinted 1964. Rockwood, Bruce, L., “Introduction: On Doing Law and Literature”, in Law and Literature Perspectives (Bruce Rockwood, ed.) (1996), pp 1ff. Rockwood, Bruce L., ed., Law and Literature Perspectives. New York: P. Lang, 1996. Ruston, Julian, W. A. Mozart: Don Giovanni. Cambridge Opera Guides, 1981. S Saransk, Ruddier, Das Bose. Oder Das Drama deer Freshet. Fischer Achenbach Vela, 2004. Safranski, Rüdiger, Wieviel Wahrheit braucht der Mensch? Über das Denkbare und das Lebbare. Fischer Taschenbuch Verlag, 2005. Schama, Simon, Power of Art. BBC Books 2006. Seeley, Frank Friedeberg, “The Heyday of the ‘Superfluous Man’ in Russia.” Slavonic and East European Review, Vol. XXXI, no. 76, December 1952–53. Shelley, Percy Bysshe, A Defense of Poetry (1821). Reprinted in The Major Works. Edited with an introduction and notes by Zachary Leader and Michael O’ Neill. O.U.P. 2003. Siniavskii, Andrei Donatovich, For Freedom of Imagination: Essays by the Imprisoned Soviet Critic on Pasternak, Yevtushenko, Ahkmatova, Robert Frost and Other Subjects. Translated by Laszlo Tikos and Murry Peppard. Holt, Rinehart, and Winston, 1971. Siniavskii, Andrei Donatovich, On Socialist Realism. University of California Press, 1982. Spencer, Herbert, Social Statics; or, The conditions essential to human happiness specified, and the first of them developed New York; D. Appleton and Co. 1865 (University of Michigan University Library).

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—

Works referred to in this book Solomon, Maynard, Mozart, 1995. Solzhenitsyn, Alexandr Isayevich, The First Circle. Translated by Max Hayward, Manya Harari and Michael Glenny. London: The Harvil Press, 1966. Solzhenitsyn, Alexandr Isayevich, One Day in the Life of Ivan Denysovich. (First published in the Soviet Union in 1963. English translation by Ralph Parker 1962. Penguin edition, 1963. Steinberg and Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty.” 58 Am. Psychologist 1009 (2003). T Taylor, Pitt, Judge, A Treatise on the Law of Evidence, 12th ed., Volume 2. (R. P. Croom-Johnson and G. F. L. Bridgman, eds.), London: Sweet & Maxwell, 1931. Thucydides, The History of the Peloponnesian War. Revised edition. Translated by Rex Warner. Penguin Classics, 1954. Till, Nicholas, Mozart and the Enlightenment, 1992. Tolstoy, Leo Nikolayevich, Kreutzer Sonata (1889). Translated by Doris Lessing and Isui Kamen 2003. Treitel, Sir Guenter, “Jane Austen and the Law”, [1984] 100 LQR, pp. 549–86. Turgenev, Ivan Sergeyevich, Diary of a Superfluous Man. 1850. Turgenev, Ivan Sergeyevich, Faust. Translated by Hugh Alpin. Hesperus Press, 2003. Turgenev, Ivan Sergeyevich, Fathers and Sons. A Stressed Text with an Introduction and Notes by E. R. Sands, 2nd ed. Cambridge: Cambridge University Press, 1965. Turgenev, Ivan Sergeyevich, Fathers and Sons. Translated by Rosemary Edmonds and with the Romanes Lecture by Isaiah. Berlin, 1975. Turgenev, Ivan Sergeyevich, On the Eve. 1860. Turner, J. Neville and Williams Pamela, The Happy Couple, Law and Literature. The Federation Press, 1994. V Vaughn, J. C., Soviet Realism: Origins and Theory. New York: St. Martin’s Press, 1973. W Waldock, A. J. A., “Satan and the Technique of Degradation.” Paradise Lost and its Critics. Cambridge: Cambridge University Press, 1947. Ward, Daniel, “Introduction.” The Demon. Lermontov. The Library of Russian Classics, 1964. Ward, Ian, Law and Literature: Possibilities and Perspectives. Cambridge University Press, 1995. Weir, Tony, “Two Great Legislators”, 21 Tulane European & Civil Law Forum, pp. 35–51 (2006).

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—

Works referred to in this book Weisberg, Richard, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction. New Haven: Yale University Press, 1984. West, Robin, “Jurisprudence and Gender”, 55 Univ. of Chicago L. Rev. 1072 (1988). West, Robin, “Communities, Texts, and Law: Reflections on the Law and Literature Movement”, 1 Yale J. of Law and Humanities, 138 (1988). White, J., “Law as Language: Reading Law and Reading Literature”, 60 Texas L. Rev. 437 (1982). White, Michael, C. S. Lewis: The Boy Who Chronicled Narnia. A Biography. Abacus, 2005. Wilde, Oscar, The Complete Works of Oscar Wilde. Stories, Plays, Poems and Essays (with an introduction by Vyvyan Holland). Harper Perennial Library edition, 1989. Williams, Bernard, “Don Juan as an Idea.” Don Giovanni (Julian Rushton, ed.), Cambridge Opera Handbook, 1981. Wilson, W. Daniel, “Goethe and the political world”, in The Cambridge Companion to Goethe (Lesley Sharpe, ed.), 2002, pp. 207. Witteveen, William, “Cicero Tells a Story on Narration and Rhetorical Reflection”, Law and Literature Perspectives (Bruce L. Rockwood, ed.), 1996, pp. 427–443. Wittreich, Joseph Anthony, Why Milton Matters: A New Preface to this Writings (2001). Worden, Blair, “Milton’s republicanism and the tyranny of heaven”, in Machiavelli and Republicanism (Gisela Bock, Quentin Skinner, and Maurizion Viroli, eds.), Cambridge: Cambridge University Press, 1993. Wroe, Ann, Pontius Pilate: The Biography of an Invented Man. London: Jonathan Cape, 1999. Z Zamiatin, Yevgeny Ivanovich, We. Translated by Bernard Guilbert Guerney. Penguin Books, 1977.

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Index of names A Abdiel (Seraph) 53, 55 Achilles 68, 69, 71, 169, 214 Aeneas 69, 95, 111–114, 119, 169, 217 Agafia 59 Agamemnon 69 Alcinous (King) 113 Alexander II (Tsar of Russia) 207 Alpin, Hugh 216 Alschuler’s, Albert W. 24, 56, 154, 186, 198 Apollo 112 Ariosto, Ludovico 240 Aristotle 14, 70, 156, 218 Arminius, Jacobus 157 Arretino, Pierro → see color plate 3 Artemis 112 Athena 95 Augustus, Octavian (Roman Emperor) 22 Austen, Jane 226 Austin, Arthur 224, 232, 233 B Bagritski, Eduard Georgyevich 146 Bakunin, Mikhail Alexandrovich 124 Balkin, J. M. 10, 11, 13 Baudelaire, Charles 50, 170 Bazarov, Yevgeny Vassilyich 58, 65, 66, 122, 124, 129, 180, 206–208, 222 Becker-Cantarino, Barbara 23 Beelzebub 211 Beethoven, Ludwig van 13, 69, 236

Index of names

Belial 37, 38 Belinski, Vissarion Grigoryevich 138 Benet, Diana 163 Berlioz, Hector 113 Bernini, Gainlorenzo 22 Bertati, Giovanni 41 Beswick, Peter 218 Bèze, Theodore 157 Biagio da Casena → see color plate 3 Bismarck, Otto von (Chancellor of Germany) 22–24, 69 Bison, Giuseppe Bernardino → see color plate 5 Bivar, Rodrigo de 111, 116, 117 → see also Cid Black, Hugo 186 Blair, Tony 5, 158, 159, 212, 213 Blake, William 50, 51, 54, 57, 62, 210 Bock, Gisela 212, 213 Bocken, Hubert IX Bonaparte, Napoleon 22, 23, 56, 70, 156, 167, 212 Bosch, Hieronymus 192 Browning, Robert 2 Buanarroti, Michelangelo 56, 60, 69, 89 Bulgakov, Mikhail Afanasievich 15, 144, 145, 148, 149, 158, 177, 178 Butler, H. E. 182 Byars, Meredith VIII C Caesar, Julius 112 Cairns, David 28, 43, 44 Callow, Simon 216 Calvin, John 22, 69, 157 Calypso 94, 111 Canaletto, Antonio → see color plate 5 Cardinal de Richelieu 22, 69, 116, 117, 174 Cardozo, Benjamin 2, 23, 56, 57, 105, 171, 182, 186, 193 Chances, Ellen 129 Chapelain, Jean 116, 119, 190 Chateaubriand, François-René, Vicomte de 211–213 —

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Index of names

Chekhov, Anton Pavlovich 97, 146, 218 Chernyshevsky, Nikolai Gavrilovich 126 Cherubino 191 Chimène 116–120, 174, 215 Chirikov, Evgeny Nikolayevich 146 Choderlos de Laclos, Pierre, Ambroise, François 169 Chopin, Fréderic → see color plate 6 Churchill, Winston 156 Cicero, Marcus, Tullius 182, 183 Cid 111, 115–117, 120, 173, 215 → see also Rodrigo de Bivar Clement VII (Pope) → see color plate 3 Collini, Stephan 16 Constable, John → see color plate 6 Corneille, Pierre 115, 116, 119, 120, 144, 184, 199, 201, 215 Coward, David 170, 203 Cranston, Ross 6 Cremer, Joachim VIII Crick, Bernard 151 D Dante, Alighieri 85, 86, 94, 95, 176, 203, 221 Da Ponte, Lorenzo 27, 41–43, 47, 174 da Vinci, Leonardo 56, 69 Dawkins, Richard 165 Delacroix, Ferdinand, Victor, Eugêne → see color plate 6 De Molina, Tino 41 Denning, Lord Alfred Thompson 105, 183, 186, 218 Dent, Edward J. 28 Derrida, Jacques 106, 212 De Wolf Howe, Mark 186 Dido 69, 111–114 Dobrenko, Evgeny 141, 142, 157 Dobroliubov, Nikolai Aleksandrovich 58 Domnarski, William 186 Don Diego 116 Don Giovanni 27, 28, 41, 42, 44, 46–48, 57, 69, 72, 92, 166, 170, 174, 180, 190, 191, 208, 213, 222 Don Gomès 116, 117 —

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Index of names

Donna Anna 43, 44, 46 Donna Elvira 45, 49 Donna Uraqua 215 Don Ottavio 42, 43 Dostoyevsky, Fyodor Mikhailovich 15, 109, 122, 125, 129, 178, 179 Douglas, William, O. (Justice) 109, 186 Dunlap, G. 193 E Einstein, Albert 164 Einstein, Alfred 44 Elizabeth I (Queen of England) 69 Ely, John 10 Erinyai 95 Estrich, Susan 226 F Faust 28–30, 57–60, 65–69, 73, 93, 162, 170, 173, 177, 180, 192, 208, 214, 216, 220, 222 Fedtke, Jörg VIII, 98 Fifoot, C. H. S. 185 Figaro 7, 45, 48, 191 Firenze, Antonio del → see color plate 3 Flaubert, Gustave 170 Ford, John C. 24 Francis of Assisi (Saint) 22 Frank, Jerome 10, 186 Frankfurter, Felix (Justice) 186 Fuesseli, Heinrich → see color plate 1 G Gabriel (Archangel) 52 Gauthier, Théophile 190 Gayle, Gibson VIII Gazzaniga, Giuseppe 41 Getman, Jack 193 Gilmore, Grant 204 —

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Index of names

Gladkov, Fyodor Vasilyevich 146 God 28–31, 38, 40, 52–54, 60–64, 67–70, 72, 73, 75, 77–84, 89, 92–94, 98, 99, 105, 106, 109, 119, 127, 129, 160, 162, 165, 177, 178, 201, 209, 217–219, 221, 223 Goethe, Johann Wolfgang 21, 23, 28, 57–60, 65–68, 92, 148, 156, 169, 173, 176, 192, 201, 214, 217, 220, 222 Goetz, W. 226 Gogol, Nikolai Vasilevich 138, 146 Goncharov, Ivan Aleksandrovich 15, 58, 128, 220, 222 Gorbachev, Mikhail Sergeyevich 149 Gorky, Maxim 15, 126, 127, 129, 139, 140, 145, 146 Goya, Francisco 166–169 Gregg, Paul L. 24 Guardi → see color plate 5 Guest, Stephen VIII, 41 Guizot, François 156 H Hamlet 12, 148, 222 Harari Manya (translator of Solznetsyn) 249 Hawthorne, Nathaniel 226 Hayek 195 Hayford, Harrison (translator of Melville) 249 Hayward, Max 144 Henry II (King of England) 22 Henry VIII (King of England) 22 Hera IX, 95 Hermes 112 Herodotus 156 Herzen, Aleksandr Ivanovich 125 Hilderbrand, E. 226 Hirschman, L. 226 Hodges, Elizabeth Perry 226 Holmes, Oliver Wendell (Justice) 24, 25, 56, 105, 154, 186, 196–198, 204, 219 Homer 37, 113, 168, 169, 219 Honnold, J. 226

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Index of names

J Jackson, Robert (Justice), Jenkins, Roy 183, 186 Jesus, Christ 158–160, 167, 172, 177 John (Evangelist) 89, 160 Juno IX, 112 K Kafka, Franz 179 Kant, Immanuel 69 Karampatzos, Anthony, Professor VIII, 189 Khruschev, Nikita Sergeyevich 142 Kirsanov, Arkady Nikolayevich 65, 66 Klinck, Dennis, R. 218 Koziol, Helmut VIII, 201 L Labedz, Leopold 144 Lane, Geoffrey (Lord Chief Justice of England and Wales) 183 Lenin, Vladimir Ilyich 142 Leo, John 232 Leporello 42, 43, 48, 72, 191 Lermontov, Mikhail Yuryevich 15, 48, 70, 74, 75, 124, 125, 176, 178, 192, 205 Lester of Herne Hill, Lord 6 Levinson, Sanford 10–13, 181 Lewis, C.S. 38, 50, 53, 55, 61, 87, 113, 114, 152, 184, 210, 211 Lieb, Michael 163 Llewellyn, Karl 182 Louria, Yvette 58, 59, 220 Lowe-Porter, H. T. 214 Loyola, Ignatio de → see color plate 8 Lucey, Francis E. 24 Lucifer → see color plate 1 Luther, Martin 69

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Index of names

M Mac Donald, Heather 233 Machiavelli, Niccòlo 129, 156, 180, 212, 213 MacKinnon, Catherine 226 Mahoney, Dennis F. 21 Mailloux, Steven 181 Mammon 39, 40 Mandela, Nelson 19 Mann, Thomas 23, 65, 214 Margarete/Gretchen 29, 30, 57, 173, 192 Mark (Evangelist) 89, 160 Mark Anthony 112 Markesinis, Basil IX, 98, 100, 102 Markesinis, Eugenie 98, 100, 102, 142 Markovits, Richard S. 196 Marlowe, Christopher 30, 65 Marshall, John (Chief Justice) 185 Marx, Karl 195, 207 Matthew (Evangelist) 39, 60, 78, 89, 93, 160 Matthews, Martin VIII Mayakovski, Vladimir Vladimirovich 147 McDuff, David (Dostoyevski annotator) 243 Medici (family) 22 Medici, Giulio → see color plate 3 Medici, Lorenzo → see color plate 3 Melville, Herman 169, 170 Mephistopheles 28–30, 57, 67, 93, 173, 176, 177, 180, 192, 217 Merteuil, Marquise de 169, 203 Michael (Archangel) 64 Michelangelo, Buonarroti 56, 60, 69, 89 Miller, Earl 42, 45, 46, 182, 211 Miller, Jonathan → see color plate 5 Millett, Kate 226 Milosz, Czeslaw 140 Milton, John 30, 31, 37–42, 50, 51, 53–57, 60–66, 68, 70, 72, 75, 79, 81, 82, 89, 108, 156, 157, 161–166, 169, 176, 178, 192, 201, 204–206, 209–213, 218, 221, 222, 239, 240 —

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Index of names

Montaigne, Michel de 49 Moshinsky, Sidra Kranz 135 Myshkin, Prince 122 N Neptune IX, 112 Newlyn, Lucy 163 Nicholas I (Tsar of Russia) 122 Nussbaum, Martha 20, 171, 179, 195, 197 O Oblomov, Ilya Ilyich 58, 59, 128, 220, 222 Octavius, Gaius 112 Odinstova, Anna Sergeyvna 65 Odysseus 68, 69, 71, 94, 95, 111, 113, 168, 222 Onegin, Eugene 123, 208 Orestes 95 Orwell, George 47, 135, 137, 150–152, 230, 239 P Paganini → see color plate 6 Papanikolaou, Panagiotis 28 Paracelsus (or Theophrastus Bombastus von Hohenheim) 2 Parmée, Douglas (translator of Choderlos de Laclos) 242 Pascal, Blaise 49 Pasternak, Boris Leonidovich 86, 131, 143, 147–149 Paul (Saint) 108 Paul III (Pope) → see color plate 3 Peskov, Aleksey 139 → see also under Gorky Pétris, Michel (translator of Bulgakov) 242 Pilate, Pontius 158–161, 166 Plantey, Alain VIII Polyphemus 113 Pontyn, Clive 87 Pope, Alexander 219, 239 Poseidon IX, 113 Posner, Judge Richard 11–13, 24, 25, 56, 97, 98, 105, 172, 179, 186, 187, 194–198 —

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Index of names

Potápova, Melissa VIII Powers, Bill VIII Prometheus 52 Purcell, Henry 112, 113 Pushkin, Aleksandr Sergeyevich 123, 125, 208 Q Quintilian, Marcus Fabius 182 R Rakhmetov 126 Raphael (Archangel) 64 Raskolnikov, Rodion Romanovich 109 Richelieu, Cardinal de 22, 69, 116, 117, 174 Ricketts, Charles de Sousay → see color plate 4 Rockwood, Bruce L. 171, 183, 224, 226 Rushdie, Selman 134 Ruston, Julian 28 Ruthven, K. K. 194 S Sade, Marquis de 178 Safranski, Rüdiger 15, 178, 220 Sand, Georges → see color plate 6 Sardanapalos → see color plate 6 Satan 28, 30, 31, 37–42, 49–55, 57, 61–66, 69–72, 81, 108, 162, 163, 176–178, 180, 192, 204–206, 209–211, 213, 218, 221, 222, 239 Savage, Jesse 141, 142 Savonarola, Girolamo 129 Schama, Simon → see color plate 8 Scott, Sir Walter → see color plate 6 Sealts, Merton M. 246 → see Melville Seiden, Morton I 58, 59, 220 Shakespeare, William 13, 148, 178, 222 Sharpe, Kevin 53, 210, 211 Sharpe, Lesley 21, 23 Shaw, Bernard → see color plate 4 —

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Index of names

Shelley, Percy Bysshe 50, 62, 181 Sholokhov, Mikhail Aleksandrovich 147 Shwarts, S. A. 157 Simonov, Konstantin Mikhailovich 146 Sinclair, John D. 176 Siniavskii, Andrei Donatovich 15, 131, 140, 142, 144, 147, 149, 177 Skinner, Quinton 212, 213 Smith, Adam 195 Socrates 21, 22, 29, 197 Solomon, Maynard 28, 83, 84 Solzhenitsyn, Aleksandr Isayevich 150 Spencer, Herbert 197 Stalin, Joseph Vissarionovich 131, 137, 139, 140, 145–148, 150–152, 219 Stolz, Robert 128, 222 Storey, Joseph (Chief Justice) 185 Storme, Marcel IX T Tamara 71, 176, 177 Teskey, Gordon 212 Theresa, Mother 22 Thucydides 156, 199 Tiepolo → see color plate 5 Till, Nicholas 41 de Tocqueville, Alexis 156 Tolstoy, Leo Nikolayevich 47, 85, 129 Treitel, Sir Guenter 226 Turgenev, Ivan Sergeyevich 15, 58, 65, 66, 122, 124, 125, 128, 138, 169, 180, 206–208, 216, 222 Turner, J. Neville 135 Turnus 112 U Unberath, Hannes VIII, 100, 102

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Index of names

V Valentin 30, 93, 173 Valmont, Vicomte de 169 van Caenegem, Raoul IX Venus IX, 111 Virgil IX, 86, 111–114, 168, 169, 184, 203, 215, 217 Viroli, Maurizio 212, 213 Vlasov, Pavel 126 Vrubel, Mikhail Aleksandrovich 71, 177, 192 W Wagner (Faust’s assistant) 56, 73 Wagner von Papp, Florian VIII Ward, Daniel 48 Ward, Ian 171, 193, 225, 226, 230 Warner, Rex 199 Weir, Tony 22 West, Robin 187, 226 White, J (James Boyd) 187 Wilde, Oscar 20, 47, 154, 189 Williams, Pamela 135 Wilson, W. Daniel 23 Witteveen, William 183 Wittreich, Joseph Anthony 165 Woland 177 Wright, Charles Alan VIII Z Zamiatin, Yevgeny Ivanovich 15, 145, 149, 150 Zamoyska, Héléne Peltier 131 Zerlina 45, 46 Zeus IX, 95, 112 Zhdanow, A. A. 141 Zilboorg, Gregory 149 Zwicker, Steven N. 53, 210, 211

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About the author Sir Basil Markesinis was born into a family which, from his father’s side, was for over ten generations involved in politics, law, and the world of letters, first in Venice and later in Greece. He holds a Doctor Iuris from the Universities of Athens, a Ph. D. and an LL.D from the University of Cambridge, and a DCL from the University of Oxford. He is also an honorary doctor of the Universities of Paris I (Sorbonne), Ghent, Munich, and Athens. He has held tenured posts at the Universities of Cambridge, London, and Oxford, where he was Professor of Comparative Law. He currently holds the Jamail Regents Chair at the University of Texas at Austin (having also taught for many years at the Cornell Law School and the Michigan Law School) as well as chairs at University College London and the University of Leiden, the Netherlands, where, for fifteen years, he was the part-time (but tenured) holder of the Chair of Anglo-American Law. At various times, he also held the Francqui Chair of the University of Ghent. In pursuit of greater intellectual co-operation and understanding between lawyers of different legal systems, Sir Basil has founded (in chronological order) the Institutes of Anglo-American Law at the University of Leiden (1987, officially opened by H.R.H. the Prince of Wales), the Institute of European and Comparative Law at the University of Oxford (1995), the Institute of Global Law at University College London (2000), and the Institute of Transnational Law at the University of Texas at Austin (2000), where his website of leading translated German and French decisions is now primarily housed. As a scholar, Sir Basil has authored (or co-authored) thirty-one law books and over one hundred and twenty articles. A Bencher at Gray’s Inn since 1991, he also practices law from Essex Court Chambers, having been appointed Queen’s Counsel in 1997 and specializing in tort litigation with an international element.

About the author

His scholarly work has been recognized internationally by his election as Fellow of the British Academy and a Foreign Fellow of the Accademia dei Lincei of Rome, the Royal Belgian Academy of Arts and Sciences in Brussels, the Royal Netherlands Academy of Arts and Sciences in Amsterdam, and as Corresponding Member of the Institute de France (Académie des Sciences Morales et Politiques) as well as the Academy of Athens. He is also a Member of the American Law Institute. In 2005 he was Knighted by H. M. the Queen for “services to international legal relations” while, over the years, his work on European law and integration has received many high civic honours from the Presidents of France, Germany, Greece, and Italy, most recently the Insignia of Knight Grand Cross of the Order of Merit of France.

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