The heaven of legal concepts

The opening of Felix S. Cohen, “Transcendental Nonsense and the Functional Approach” (1935):

Some fifty years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems. Here one found a dialectic-hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget.

Von Jhering’s dream has been retold, in recent years, in the chapels of sociological, functional, institutional, scientific, experimental, realistic, and neo-realistic jurisprudence. The question is raised, “How much of contemporary legal thought moves in the pure ether of Von Jhering’s heaven of legal concepts?” One turns to our leading legal textbooks and to the opinions of our courts for answer. May the Shade of Von Jhering be our guide.

Contrary to folklore

Paul Samuelson, “Heads I Win, and Tales, You Lose,” in the sixtieth anniversary edition of von Neumann and Morgenstern’s Theory of Games and Economic Behavior:

Contrary to folklore, mathematical ability is not a rare gift uncorrelated with other intellectual abilities: testing demonstrates that the child good with words and logic is most likely to have native potentiality for mathematics also. That schools […] should turn us out ignorant of and resentful of mathematics, is a crime. And not because, in the age of Sputnik and automation, mathematical proficiency is a prerequisite of national prosperity and survival, but rather because of the sheer fun that people miss […]

I think of this old title on my shelf: The Sheer Joy of Celestial Mechanics.

See how high the seas of language can rise

from Kripke’s Naming and Necessity (1980):

If one was determining the referent of a name like ‘Glunk’ to himself and made the following decision, ‘I shall use the term “Glunk” to refer to the man that I call “Glunk”‘ this would get one nowhere. One had better have some independent determination of the referent of ‘Glunk’. This is a good example of a blatantly circular determination. Actually sentences like ‘Socrates is called “Socrates”‘ are very interesting and one can spend hours talking about their analysis. I actually did, once, do that. I won’t do that now, however, on this occasion. (See how high the seas of language can rise. And at the lowest points too.)

Even the subtlest experts

from Kripke, “Outline of a Theory of Truth”:

The versions of the Liar paradox which use empirical predicates already point up one major aspect of the problem: many, probably most, of our ordinary assertions about truth and falsity are liable, if the empirical facts are extremely unfavorable, to exhibit paradoxical features. Consider the ordinary statement, made by Jones:

(1) Most (i.e., a majority) of Nixon’s assertions about Watergate are false.

Clearly, nothing is intrinsically wrong with (1), nor is it ill-formed. Ordinarily the truth value of (1) will be ascertainable through an enumeration of Nixon’s Watergate-related assertions, and an assessment of each for truth or falsity. Suppose, however, that Nixon’s assertions about Watergate are evenly balanced between the true and the false, except for one problematic case,

(2) Everything Jones says about Watergate is true.

Suppose, in addition, that (1) is Jones’s sole assertion about Watergate, or alternatively, that all his Watergate-related assertions except perhaps (1) are true. Then it requires little expertise to show that (1) and (2) are both paradoxical: they are true if and only if they are false.

The example of (1) points up an important lesson: it would be fruitless to look for an intrinsic criterion that will enable us to sieve out—as meaningless, or ill-formed—those sentences which lead to paradox. (1) is, indeed, the paradigm of an ordinary assertion involving the notion of falsity; just such assertions were characteristic of our recent political debate. Yet no syntactic or semantic feature of (1) guarantees that it is unparadoxical. Under the assumptions of the previous paragraph, (1) leads to paradox. Whether such assumptions hold depends on the empirical facts about Nixon’s (and other) utterances, not on anything intrinsic to the syntax and semantics of (1). (Even the subtlest experts may not be able to avoid utterances leading to paradox. It is said that Russell once asked Moore whether he always told the truth, and that he regarded Moore’s negative reply as the sole falsehood Moore had ever produced. Surely no one had a keener nose for paradox than Russell. Yet he apparently failed to realize that if, as he thought, all Moore’s other utterances were true, Moore’s negative reply was not simply false but paradoxical.) The moral: an adequate theory must allow our statements involving the notion of truth to be risky: they risk being paradoxical if the empirical facts are extremely (and unexpectedly) unfavorable. There can be no syntactic or semantic “sieve” that will winnow out the “bad” cases while preserving the “good” ones.

The confusion is not my invention

The rubric for a grade of C in Matt Bell’s brilliant “My Grading Scale for the Fall Semester, Composed Entirely of Samuel Beckett Quotes” at McSweeney’s:

We wait. We are bored. Confusion amounting to nothing. Despite precautions. The confusion is not my invention. You must not think of certain things, of those that are dear to you, or rather you must think of them, for if you don’t there is the danger of finding them, in your mind, little by little. A disturbance into words, a pillow of old words. All life long, the same questions, the same answers. The churn of stale words in the heart again. The sun shone, having no alternative, on the nothing new. This tired abstract anger; inarticulate passive opposition. I pushed and pulled in vain, the wheels would not turn. How hideous is the semicolon.

διπλοῦν ὁρῶσιν οἱ μαθόντες γράμματα

An inscription at the University of Edinburgh

My title, “Diploun horosin hoi mathontes grammata”—those who learn the letters [or alphabet] see double—appears in the Γνῶμαι Μονόστιχοι, Gnomai Monostichoi, of Menander, a collection of one-line sayings (not necessarily Menander’s own) with a long legacy in literary education. It is line 657, on page 359, in the version collected in Μeineke’s Fragmenta Comicorum Graecorum, Volume IV, Fragmenta Poetarum Comoediae Novae:

The only English translation is by John Maxwell Edmonds, The Fragments of Attic Comedy After Meineke, Bergk, and Kock, volume IIIb, where he renders the line “Who learns to read doubles his power of sight.” (Though it is not at all what Wittgenstein meant, I am reminded of 5.6 in the Tractatus, “Die Grenzen meiner Sprache bedeuten die Grenzen meiner Welt”—the limits of my language mean the limits of my world.)

The Gnomai represent the genre of the gnomologium, a sort of textbook anthology or chrestomathy of wisdom for rhetorical or moral instruction, especially popular throughout antiquity and the Middle Ages. Erasmus mentions the genre (and cites Menander) in his Adages:

There were those, especially among the Greeks, who willingly undertook the task of making gnomologies, collections of aphorisms, notably Johannes Stobaeus. I would rather praise their work than imitate it.

Compare the commonplace book.

Copies of both of them

Augustine to Jerome in 403 CE, some six years after his previous attempt to convey his perplexity at Jerome’s decision to translate the Old Testament into Latin directly from the Hebrew, rather than from the Greek of the Septuagint (collected in A Select Library of Nicene and Post-Nicene Fathers of the Christian Church, Translated into English with Prolegomena and Explanatory Notes under the Editorial Supervision of Henry Wace and Philip Schaff):

To my venerable lord Jerome, my esteemed and holy brother and fellow presbyter: Augustine sends greetings in the Lord.

Never since I began to write to you, and to long for your writing in return, have I met with a better opportunity for our exchanging communications than now, when my letter is to be carried to you by a most faithful servant and minister of God, who is also a very dear friend of mine, namely, our son Cyprian, deacon. Through him I expect to receive a letter from you with all the certainty which is in a matter of this kind possible. For the son whom I have named will not be found wanting in respect of zeal in asking, or persuasive influence in obtaining a reply from you; nor will he fail in diligently keeping, promptly bearing, and faithfully delivering the same. I only pray that if I be in any way worthy of this, the Lord may give His help and favour to your heart and to my desire, so that no higher will may hinder that which your brotherly goodwill inclines you to do.

As I have sent you two letters already to which I have received no reply, I have resolved to send you at this time copies of both of them, for I suppose that they never reached you. If they did reach you, and your replies have failed, as may be the case, to reach me, send me a second time the same as you sent before, if you have copies of them preserved: if you have not, dictate again what I may read, and do not refuse to send to these former letters the answer for which I have been waiting so long. My first letter to you, which I had prepared while I was a presbyter, was to be delivered to you by a brother of ours, Profuturus, who afterwards became my colleague in the episcopate, and has since then departed from this life; but he could not then bear it to you in person, because at the very time when he intended to begin his journey, he was prevented by his ordination to the weighty office of bishop, and shortly afterwards he died. This letter I have resolved also to send at this time, that you may know how long I have cherished a burning desire for conversation with you, and with what reluctance I submit to the remote separation which prevents my mind from having access to yours through our bodily senses, my brother, most amiable and honoured among the members of the Lord.

There is none to praise it

Footnote 33 in Chapter 8 of Ernst Robert Curtius’s European Literature and the Latin Middle Ages, commenting on lines from Smaragdus of Saint-Mihiel’s didactic poem on grammar, “Partibus inferior jacet interiectio cunctis / Ultima namque sedet et sine laude manet”:

“Sad is the lot of the interjection, for of all the parts of speech it has the lowest place. There is none to praise it.” On the way from Latin to French, the penultimate syllable of the proparoxytone succumbed. Mallarmé was so touched by this that he wrote a prose poem on the “Death of the Penultimate” (Le Démon de l’analogie in Divagations). It ends: Je m’enfuis, bizarre, personne condamnée à porter probablement le deuil de l’explicable Penultième. Grammar too has its tragedies.

The celestial emporium of benevolent knowledge

from Borges’s essay “El idioma analítico de John Wilkins,” published in Otras Inquisiciones, translated by Ruth L. C. Simms, later made famous by the opening of Foucault’s Les mots et les choses:

At one time or another, we have all suffered through those unappealable debates in which a lady, with copious interjections and anacolutha, swears that the word luna is more (or less) expressive than the word moon. Apart from the self-evident observation that the monosyllable moon may be more appropriate to represent a very simple object than the disyllabic word luna, nothing can be contributed to such discussions. After the compound words and derivatives have been taken away, all the languages in the world (not excluding Johann Martin Schleyer’s volapük and Peano’s romance-like interlingua) are equally inexpressive. There is no edition of the Royal Spanish Academy Grammar that does not ponder “the envied treasure of picturesque, happy and expressive words in the very rich Spanish language,” but that is merely an uncorroborated boast. Every few years the Royal Academy issues a dictionary to define Spanish expressions. In the universal language conceived by Wilkins around the middle of the seventeenth century each word defines itself. Descartes had already noted in a letter dated November, 1629, that by using the decimal system of numeration we could learn in a single day to name all quantities to infinity, and to write them in a new language, the language of numbers. He also proposed the formation of a similar, general language that would organize and contain all human thought. Around 1664 John Wilkins began to undertake that task.

Wilkins divided the universe into forty categories or classes, which were then subdivisible into differences, subdivisible in turn into species. To each class he assigned a monosyllable of two letters; to each difference, a consonant; to each species, a vowel. For example, de means element; deb, the first of the elements, fire; deba, a portion of the element of fire, a flame. In a similar language invented by Letellier (1850) a means animal; ab, mammalian; abi, herbivorous; abiv, equine; abo, carnivorus; aboj, feline; aboje, cat; etc. In the language of Bonifacio Sotos Ochando ( 1845) imaba means building; imaca, brothel; imafe, hospital; imafo, pesthouse; imari, house; imaru, country estate; imede, pillar; imedo, post; imego, floor; imela, ceiling; imogo, window; bire, bookbinder, birer, to bind books. (I found this in a book published in Buenos Aires in 1886: the Curso de lengua universal by Dr. Pedro Mata.)

The words of John Wilkins’s analytical language are not stupid arbitrary symbols; every letter is meaningful, as the letters of the Holy Scriptures were meaningful for the cabalists. Mauthner observes that children could learn Wilkins’s language without knowing that it was artificial; later, in school, they would discover that it was also a universal key and a secret encyclopedia.

After defining Wilkins’s procedure, one must examine a problem that is impossible or difficult to postpone: the meaning of the fortieth table, on which the language is based. Consider the eighth category, which deals with stones. Wilkins divides them into the following classifications: ordinary (Hint, gravel, slate); intermediate (marble, amber, coral); precious (pearl, opal); transparent (amethyst, sapphire); and insoluble (coal, clay, and arsenic). The ninth category is almost as alarming as the eighth. It reveals that metals can be imperfect (vermilion, quicksilver); artificial (bronze, brass); recremental (filings, rust); and natural (gold, tin, copper). The whale appears in the sixteenth category: it is a viviparous, oblong fish. These ambiguities, redundances, and deficiencies recall those attributed by Dr. Franz Kuhn to a certain Chinese encyclopedia entitled Celestial Emporium of Benevolent Knowledge. On those remote pages it is written that animals are divided into (a) those that belong to the Emperor, (b) embalmed ones, (c) those that are trained, (d) suckling pigs, (e) mermaids, (f) fabulous ones, (g) stray dogs, (h) those that are included in this classification, (i) those that tremble as if they were mad, (j) innumerable ones, (k) those drawn with a very fine camel’s hair brush, (l) others, (m) those that have just broken a flower vase, (n) those that resemble flies from a distance. The Bibliographical Institute of Brussels also resorts to chaos: it has parceled the universe into 1,000 subdivisions: Number 262 corresponds to the Pope; Number 282, to the Roman Catholic Church; Number 263, to the Lord’s Day; Number 268, to Sunday schools; Number 298, to Mormonism; and Number 294, to Brahmanism, Buddhism, Shintoism, and Taoism. It also tolerates heterogeneous subdivisions, for example, Number 179: “Cruelty to animals. Protection of animals. Moral Implications of duelling and suicide. Various vices and defects. Various virtues and qualities.”

Freely and sportively bombinating

A month ago I finished Charlotte Brontë’s vastly underrated first novel The Professor, which she completed at 31 but could never get published; her husband Arthur Bell Nichols finally got it out two years after her death, in 1857.

This week I happened to pick up Aldous Huxley’s first, Crome Yellow (1921), which he published at 27. It is just as forgotten and just as brilliant, and the critics have been just as wrong about both.

Each is dense with learning, psychological insight, and piercing characterization. (Each taught me several new words—indurated comes to mind in Brontë, pullulation in Huxley. At least 5% of The Professor is in French.) Both fell out of favor in part due to the facile charge of plotlessness—as if all the talking and thinking and feeling at work in them were not forms of action. Both feature intelligent men in their twenties who take a special interest in language and, of course, fall in love. And both partake of the satirical, but not relentlessly so; the authors clearly see something of themselves in their protagonists, though even they are not spared. I winced in self-recognition at several moments in each.

Brontë’s prose is purpler, more earnest and romantic: it frequently climbs to high and impassioned registers, but never loses contact with its undertone of intelligence. Writing on the other side of the Great War, Huxley, of course, would blush at such rapturous profusion, though I’d like to think he would admire its freshness. He is instead tersely witty, more straightforwardly and charmingly comic, at times virtually slapstick. (Chapter 1 ends, “He would take them by surprise.” Chapter 2 begins, “He took nobody by surprise; there was nobody to take.” [I’m not sure there’s a six-word sentence anywhere in Brontë.] In probably the funniest scene in the novel, our hero waxes romantic and at length about the beauty of the word carminative, only to have his ego—quite aptly—deflated, when he finally learns what it means. It is the most alembicated fart joke that has ever been told.) His monikers evoke Saki and Wodehouse: there is a Priscilla Whimbush, a Mr. Barbecue-Smith. But most of his humor operates quietly, by the irony of rhythm and understatement—as tight-lipped and corseted as the aristocrats he spoofs. The joke is all the richer because we are proud to have noticed it.


An unsigned review in the Times Literary Supplement, November 10, 1921, reprinted in Aldous Huxley: The Critical Heritage, edited by Donald Watt:

“I am tired of seeing the human mind bogged in a social plenum; I prefer to paint it in a vacuum, freely and sportively bombinating.” The plan was ascribed to a fabulous author in Crome Yellow, by Mr. Aldous Huxley. A vacuum is suggested by the rarefied seclusion of his fantastic coutnry house, where a small group of human beings reveal their amusingly simplified traits. But the void is, judiciously, not quite complete. The tone of Mr. Huxley’s story matches the title and the covers; it is a rich, full yellow, which suggests the exhilarating glow of summer and the answering temperature of mind. In this atmosphere the characters bombinate, so far as the heat allows. On the high towers of Crome by starlight (Mr. Huxley will explain in whimsical fashion why they were so absurdly tall), in the cool shadows of the granary, along the deep yew alleys by the swimming pool, the transitory action passes; while the things that are not done (so often more important than those that are) bubble in the mind, betray themselves in spontaneous gestures, or float down the stream of talk.

Mr. Huxley’s personages are drawn with an extreme verve of crispness; in fact the merit of his comedy is that it becomes always more amusing as it grows. Little Mary Bracegirdle, with the earnest blue eyes and bell of short hold hair, would be very tiresome if she talked much of her “repressions”; so she is confined, for the most part, to simple and fatal acts. Mr. Scogan, on the other hand, whose forte is a dry, racy monologue which drones at intervals beneath the bombination, is enlivening for just so long as he would naturally be; only near the end is he revealed in the full colours of a bore. The way in which Mr. Huxley manoeuvres his party, displaying them by adroitly contrasted little scenes, has a good deal of Anatole France’s touch; and it is quite in the manner of that master to stay the narrative which a choice extract from the family records or a fuliginous sermon on the Second Advent by the vicar. Mr. Huxley suggests the same tone, too, by his rich converse with books, and by the “direct action” of the younger members of the party, which puts ideas to rout. But then the master himself, though he is steeped in knowledge and plays with contemporary follies, never leaves us with a notion that he limited by fashions or by culture. Of Mr. Huxley we do not feel quite so sure; like his Henry Wimbush, who remarks at a village dance that “if all these people were dead this festivity would be extremely agreeable”—for then one could simply romantically read about them—he almost invites us to believe that the proper study of mankind is books. Almost; but not quite; for in Denis, the hero of this little story, through whose eyes we see most of it, the tragi-comedy of adolescence becomes really poignant at the end. The stroke which ruined Denis’s hopes and chances was something that went deeper than his love-affair; it was the discovery, in a humiliating form, that there was a real world of remorseless and self-centered persons which impinged on his own crystal world of illusions and ideas. This shock gives the point to Mr. Huxley’s fantasy, which is so engaging that we hardly wish it other than it is; all we miss is a certain feeling of assurance that he is using his imagination freely for himself.

From Watt’s introduction to The Critical Heritage:

For Aldous Huxley (1894–1963) life and music shared a common quality: they could each be described as a simultaneity of co-existing incompatibles. The same description may be applied to the critical reception of Huxley’s work. He was hailed as an emancipator of the modern mind and condemned as an irresponsible free-thinker; celebrated as a leading intelligence of his age and denounced as an erudite show-off; admired as the wittiest man of his generation and dismissed as a clever misanthrope. A few pages of his writing or half a career served equally to evoke the incompatible opinions. Opening the cover of Point Counter Point, Wyndham Lewis objected to a “tone of vulgar complicity with the dreariest of suburban library-readers,” while André Maurois discovered in the same opening pages scenes “worth of the great Russians.” In 1933 C. P. Snow claimed that Huxley “ought to seem the most significant English novelist of his day”, while G. K. Chesterton quipped: “[He] is ideally witty; but he is at his wit’s end.”

Huxley’s writing, both the fiction and the nonfiction, provoked controversy at almost every stage. Those very features of his work which drew most praise—the scientific contexts, the detached irony, the panoply of startling ideas—provided as often as not evidence which his critics felt could be used against him. The Huxley critical heritage is a history of vigorous contention spurred by not always equal shares of insight and misunderstanding.

At the center of that history was Huxley’s own peculiar approach to fiction, what George Catlin called “that strange mutt of literature,” the “novel of ideas.” The term provided at most a sketchy description of Huxley’s books, but his critics were at a loss to suggest anything better. His attitude toward fiction seemed to casual and iconoclastic. “There aren’t any divinely laid down canons of the novel,” he asserted. “All you need is to be interesting.” Huxley’s novels flaunted those conventions of logical realism followed faithfully by older writers, such as John Galsworthy and Arnold Bennett. Accordingly, his younger audience in the 1920s found him refreshing: “By comparison, most other contemporary writers seemed stuffy, unenlightened, old-fashioned.” But at the same time his writing appeared to defy the new authoritative view of fiction as an organic art form which had evolved through the influence of Flaubert and Henry James. Developing standards of criticism in the earlier twentieth century were deeply affected by Jamesian aesthetics, by Bloomsbury’s belief in the autonomy of art, and by a severely formalist approach to literature. Huxley’s practice of the novel ran counter to these trends: “From a Jamesian perspective that insisted on rigidly delimiting a fictional world through a filtering consciousness with which the reader was asked to identify but could never wholly rely on, Huxley the novelist was inevitably unsatisfactory” (Firchow). To many observers the failure of Huxley’s fiction either to adopt a traditional posture or to adhere to a formalist criterion meant that he was stuck in an untenable sort of writing which hovered indecisively between the novel and the essay.

Huxley’s critics were slow to realize that he held a different concept of fiction. Like Quarles in Point Counter Point, he readily admitted the problems he had in creating conventional plots: “I don’t think of myself as a congenital novelist—no. For example, I have great difficulty in inventing plots. Some people are born with an amazing gift for storytelling; it’s a gift which I’ve never had at all” (Paris Review interview). But the telling of stories, for Huxley, was only a small part of what fiction could accomplish. He wrote to Eugene Saxton on 24 May 1933: “I probably have an entirely erroneous view about fiction. For I feel about fiction as Nurse Cavell felt about patriotism: that it is not enough.” The popular style of fiction written by Dumas, Scott, or Stevenson could not satisfy Huxley. Also, as much as he appreciated Arnold Bennett’s friendship and advice, he recoiled from the elaborate realism of books like Riceyman Steps. Throughout his life Huxley sought to write another kind of fiction. “My own aim,” he told an early interviewer, “is to arrive, technically, at a perfect fusion of the novel and the essay, a novel in which one can put all one’s ideas, a novel like a hold-all” (Maraini). The drive to synthesize multifarious attitudes towards life moved Huxley to develop an integrative approach to fiction which in its breadth, he hoped, would transcend the limits of purist art. In this radically charged sense Huxley believed that fiction, along with biography and history, “are the forms”:

My goodness, Dostoevski is six times as profound as Kierkegaard, because he writes fiction. In Kierkegaard you have this Abstract Man going on and on—like Coleridge—why, it’s nothing compared with the really profound Fictional Man, who has always to keep these tremendous ideas alive in a concrete form. In fiction you have the reconciliation of the absolute and the relative, so to speak, the expression of the general in the particular. And this, it seems to me, is the exciting thing—both in life and in art.