GOLDSTEIN TO CAVELL - IT'S A HOLLYWOOD THING, PHILOSOPHICALLY

Some time earlier this year, on the 25^th June, Celia and I went to visit with Jerome Fletcher and JR Carpenter at Cerisy-la-Salle, where they had been invited to give performances of their work. We had not been there before and knew little of the place and its significance in the scheme of things.  It was a great visit and quite a history lesson. 

Since we have been in Paris, I have been lurking through the philosophical halls of the Sorbonne under the guise of ‘auditeur’. Apart from a bit of ‘recherche du temps perdu’ I have been researching through various texts by Scottish and American enlighteners of the 18^th and 19^th centuries.  The French have not had much of a look in, unlike my earlier sojourn at Dartington which was full of Frenchman.  Rather than Derrida, Foucault and Deleuze, it has been, Smith, Hume and Thoreau –rather good names for firms of solicitors. They have each set out quite a brief.

Derrida

Foucault

Deleuze

The question of what is philosophy has become more than somewhat prominent in one’s thoughts. It is just that question that Martin Heidegger posed at a performance lecture at Cerisy-la-Salle in 1955 – Was ist das-Die Philosophie?

George Steiner, French born American essayist and professor, suggested “The stress lies as heavy on ist and on das as it does on Philosophie.  He makes the notion ‘philosophie’...dependent on, ancillary to, the greater, more pressing question and notion of ‘isness’ and ‘whatness’.  The fuller translation of the title could read: ‘What is it to ask – what this thing philosophy, is?’  It is our task, begins Heidegger, to set discussion on its way, to bring it ‘on to a path’.  The infinite article is intended to underline the postulate that this path is only one among many, and that there is no a priori guarantee that it will conduct us to our goal.”  Heidegger proposed a distinction between matters which he called fraglich ‘questionable’ and those which are fragwürdig ‘worthy of being questioned’. ‘Questionable’ is used in the sense of capable of being the subject of a question rather than something suspect, and is also a question for which there is a clear or definitive answer (e.g. Whose yacht is that?). As to that which is worthy of being questioned, the subject can be inexhaustible, one comes to no specific conclusion. The fragwürdig apparently “dignifies the question and the questioner by making of the process of interrogation and response an ever renewed dialogue and counterpoint.”.

G. Steiner

Heidegger

I am not at all comfortable with the notion that certain questions are more worthy than others merely because they have no conclusion.  The idea that posing such questions is more dignified or intellectually uplifting is questionable. We all do it all the time, in one form or another.

Of more interest to me however, is that I have discovered people who should have been known to me before. Stanley Cavell is an instance in point. He is now 90 years old. He was born Stanley Louis Goldstein in Atlanta Georgia. When he was 16 years old, in the year of my birth, he changed his name from Goldstein to Cavell. He also, like myself, attended UCLA and left without having taken a degree. Unlike me, who took another 45 years to get a degree, he went on to get a degree from Berkeley and later a Ph.D. from Harvard. His main topic is 20^th Century Western Philosophy and he is very interested in film theory. One of his books, “The Pursuits of Happiness” describes his experience of seven prominent Hollywood comedies: The Lady Eve, It Happened One Night, Bringing Up Baby, The Philadelphia Story, His Girl Friday, Adam’s Rib, and The Awful Truth.  Now I ask you, what could be better than that? Cavell argues that these films, from the years 1934–1949, form part of what he calls the genre of "The Comedy of Remarriage," and he finds in them great philosophical, moral, and indeed political significance. Specifically, Cavell argues that these Hollywood comedies show that "the achievement of happiness requires not the [...] satisfaction of our needs [...] but the examination and transformation of those needs." According to Cavell, the emphasis that these movies place on "remarriage" draws attention to the fact that, within a relationship, happiness requires "growing up" together with one's partner. I would add to this list, Midnight, Palm Beach Story and Miracle at Morgan’s Creek.

Stanley Cavell

He is also a fan of J.L. Austin. In his book of collected essays,  Philosophy the Day After Tomorrow Cavell makes the case that J. L. Austin's concept of performative utterance requires the supplementary concept of "passionate utterance": "A performative utterance is an offer of participation in the order of law. And perhaps we can say: A passionate utterance is an invitation to improvisation in the disorders of desire." The book also contains extended discussions of Friedrich Nietzsche, Jane Austen, George Eliot, Henry James, and Fred Astaire, as well as familiar Cavellian subjects such as Shakespeare, Emerson, Thoreau, Wittgenstein, and Heidegger.

Why am I only finding out about him now? And what about Fred Astair?

THE COMMON LAW - WITH APOLOGIES TO LENNY BRUCE

I recently suggested to my instructor, Sonia Boussange-Andrei (who teaches the course entitled: Philosophie du Droit – La Justice et les Droits – le moment des Lumières Ecossaises, loosely translated as Philosophy of Law - Justice and Rights - Times of Scottish Enlightenment) that I could do an exposé (presentation) on the ‘common law’ in the UK as I had been working as lawyer in London for some 30 years. She seemed initially to like the idea; however, subsequent to an essay she had agreed to read, she changed her mind, graciously stating that there might not be sufficient time to take in the presentation owing to the amount of material she had to get through and the time needed for the various student presentations to come.

David Hume

Adam Smith

Francis Hutcheson

Adam Ferguson

The course is mainly a close reading of David Hume’s Treatise of Human Nature and Adam Smith’s Theory of Moral Sentiments, together with various texts from Jeremy Bentham, Adam Ferguson, Francis Hutcheson, John Millar, J. S. Mill, some other 18^th Century philosophers and including more recent works by Martha Nussbaum (b. 1947), Friedrich Hayek (1899-1992), Philip Pettit (b. 1945) and a host of other writers on the subject through the centuries. Clearly this is a good cross section of writings on the matter of rights, justice and the law.

Martha Nussbaum

Sonia had set an essay topic as Le Droit et la Convention (The law and convention or Rights and conventions) and had very kindly agreed to allow me to contribute a piece of my own, which she would read primarily to give me a view of my use of the French language. Apparently the language was clear and fluid, however my version of what an essay should be was not what was expected. It did not fit the French institutional convention of how an essay is written. She did state, en passant, that it was very interesting. Oh dear. I thought, so not really worth reading. She asked if my exposé, would be along the same lines, to which I hesitantly replied ‘Yes’. She then indicated that there would not be any time for it, owing etc. Clearly my effort was not worthy of any exposure, not even of any kind.

On reflection I should have replied ‘No’ and indicated to her just what it was I intended for the presentation. It probably would have made no difference to her decision but it would have been fun to do. Although my essay made reference to common law and the duty of care, it did not develop in the way I had planned for the presentation. My fellow students, being mostly young French persons in their early twenties, are hardly likely to have been exposed to Lenny Bruce. The opening of the planned presentation is an homage to Lenny Bruce and his routine on how the law might have evolved. He developed this routine as a result of his own problems with various courts in the United States, resulting in lengthy litigation and association with numbers of lawyers. In my view it is a very philosophical approach drawing on the work of the very Scottish writers we have been reading. It may appear simplistic but is a clear reflection of the evolution of primitive man’s relationship with the imposition of rules, regulations, rights and conventions. The following would have been my presentation:

Lenny Bruce

Natural behaviour in human beings requires them to interact. Interaction necessitates compromise and establishing ways of getting along together, hence rules of behaviour.  John Millar, Scottish philosopher, in his Observations concerning the Distinction of Ranks in Society, 1771, writes:

Of all our passions, it should seem that those which unite the sexes are most easily affected by the peculiar circumstances in which we are placed, and most liable to be influenced by the power of habit and education. Upon this account they exhibit the most wonderful variety of appearances, and, in different ages and countries, have produced the greatest diversity of manners and customs.

    The state of mankind in the rudest period of society, is extremely unfavourable to the improvement of these passions. A savage who earns his food by hunting and fishing, or by gathering the spontaneous fruits of the earth, is incapable of attaining any considerable refinement in his pleasures. He finds so much difficulty, and is exposed to so many hardships in procuring mere necessaries, that he has no leisure or encouragement to aim at the luxuries and conveniences of life. His wants are few, in proportion to the narrowness of his circumstances. With him, the great object is to be able to satisfy his hunger, and, after the utmost exertions of labour and activity, to enjoy the relief of idleness and repose. He has no time for cultivating a correspondence with the other sex, nor for attending to those enjoyments which result from it; and his desires being neither cherished by affluence, nor inflamed by indulgence, are allowed to remain in that moderate state which renders them barely sufficient for the continuation of the species.

Imagine, if you will, a group of primitive humans in their cave bedding down for the night after the usual evening meal. In the morning, one of them, our person concerned, wakes up with a face full of garbage.  He remonstrates with his fellows and complains to all the spectators “Hey, what’s the deal here, I go to sleep and wake up with a face full of garbage, what’s with that.” “You’re right” they say “No one should have to wake up with a face full of garbage. So here’s what we’ll do. We’ll sleep in area A, eat in area B and throw our crap in area C. Agreed? That will be the rule, eat, sleep, crap.” Everybody agrees. The next morning our person concerned wakes up only to find he has a face full of garbage. “Hey what’s going on, I thought we all agreed, eat sleep and crap and I wake up again with garbage all over me? What’s going on?” “Ah well, you’re quite right again. OK from now on, if anybody throws garbage on us while we’re sleeping, they get thrown in the garbage house. Is that good for everybody.” “What everyone?” “Yes anybody, no throwing crap”,  “But what if it’s my mother?”, “That doesn’t matter, the rule’s the rule. Everybody gets thrown in the crap house for throwing crap. No exceptions, no privileges of rank, nothing. OK?” “OK agreed”. “But people wont go in there by themselves, so we have to get somebody to stop them and put them in the crap house, so we need some people to enforce the rule. Is that OK? Everybody cool with that? It will mean some people will have control over other people, but only to keep the peace. That good for everyone? OK? OK – good, that’s what we’ll do”. So everything seems fine, but the next morning our person concerned wakes up with a face full of crap. “This is ridiculous, what is all this, why aren’t you people stopping the crap throwers?” “Well we can’t seem to find them, we don’t know. “ Hey look there, that guy with crap on his hands, it’s him” “No, no it wasn’t me, I was just cleaning up the cave that’s why I’ve got crap on my hands, it wasn’t me. Besides, I was with my girlfriend last night in the cave next door, so it couldn’t have been me” “ You sure, I think it’s you, it’s the same kind of crap, look” “No no not me” ‘How can we be sure” “So OK, before we go any further we have to be sure that we have the right person who threw the crap. Nobody gets thrown in the crap house, unless we’re sure they threw the crap. It’s not right that innocent people should get thrown in the crap house. so we have to get it right, OK? Is that something we can all agree on? OK good. Everybody gets a fair hearing and only gets put in the crap house if we’re all sure. Good? Good that’s OK then.” So things are going along nicely when one morning, the person concerned wakes up with another face full of crap.” This is too much. We’ve got rules, What are you people doing. I should not have to wake up every day to the same crap. What’s going on? Look at me” “What’s the problem?” “Look at me, I’ve got crap again” “What crap, I see no crap” “What do you mean, look at this, this is crap.” “That’s not crap. It just normal overnight dust. Nothing to bother about. Its normal.” “What do you mean normal? Have a good look, this is crap” “No sorry, we don’t see it.” “For God’s sake take a really good look, it sticks, it smells bad, this is crap if ever there was crap.” “Well maybe. Now that we’ve had a closer look we think it might be crap, so we’d better do something about it.” “So what this means is that, before anything is done, and we go off looking for a crappy person, we have to be sure that the crap complained of is actually crap, otherwise its just normal day to day crap, OK? Once again are we all agreed? Number one, no one can throw crap, number two, whoever does gets put in the crap house, no matter who it is; Number three, we have to be sure who did it, and number four, we have to be sure that whatever it is, is crap, so the person concerned has to prove that it’s crap in the first place. OK? All agreed say aye” and all said aye.

So that’s sort of how the common law got started. It evolved over time with each complaint by a person concerned being taken up by the spectators as they sought to clean up the crap. This empathy by the spectators created a situation which compelled them all to sort out how the rules dealing with crap throwing would work. It also compelled them to sort out how to deal with the crap thrower. What to do with them for throwing the crap and how to compensate the victim of the crap thrower.

In a piece by Martha Nussbaum entitled Poets as Judges: Judicial Rhetoric and the Literary Imagination, she refers to the following:

 Carr –v- Allison Gas Turbine Division, General Motors Corp    [32F3D 1007  (7^TH Cir 1994)]            

Mary Carr was the first woman to work in the tinsmith shop of the gas turbine division of General Motors’ plant in Indiana. Over a period of five years, she encountered sexual harassment from her male coworkers. During four of the five years, she complained to her supervisor, to no avail. In 1989, she decided that the situation had become unbearable and quit. She brought suit against General Motors ("GM"), seeking back pay and other relief. After a bench trial, District Judge Larry J. McKinney ruled in favor of GM, accepting the company's arguments that the alleged harassment was merely sexual bantering of a type common in the workplace and that GM was powerless to stop this bantering.  On appeal, the Seventh Circuit ruled in favor of Mary Carr in an opinion written by Judge Richard Posner.

This case is unusual because the appellate court overruled the trial court's findings of fact. At the opening of the opinion, Posner remarks that Carr's lawyers, concerned that the prevalent clear-error standard would make such a result unlikely, attempted to persuade the Court that there had been legal error in the lower court's opinion.  Posner found no legal error, but he did find error in the findings of fact. The clear-error standard, he wrote, "requires us appellate judges to distinguish between the situation in which we think that if we had been the trier of fact we would have decided the case differently and the situation in which we are firmly convinced that we would have done so." Posner thus announced at the start that his ruling was based on this sort of firm conviction. His account of the facts must therefore support that judgment.

This case is a classic example of the common law in action, the setting of precedent and establishing law. Mary Carr, the person concerned, suffered more than appalling behavior on the part of her co-workers. If anyone had crap thrown at her, she did; however, the court of first instance did not recognize the crap and callously referred to it as ‘merely sexual bantering of a type common in the workplace’. She persisted and went to a higher court, with more empathetic impartial observers, who fully recognized the crap that she had been through. Indeed, a reading of the facts of the case should cause any truly impartial observer to wonder at the staggering ignorance of the lower court in making the judgment it came to. Whether the higher court’s decision is the result of more poetic judging, I cannot say that I fully agree with Martha Nussbaum, but it does indicate a judiciary far more in tune with current views of behavior, and what is or is not appropriate in the twentieth and twenty first century. What may previously have appeared as ‘merely sexual bantering’ is now clearly inappropriate and contrary to the law as a result of this higher court precedent set in 1994.

A common law legal system is characterized by case law developed by judges, courts, and similar tribunals, when giving decisions in individual cases that have precedential effect on future cases. The body of past common law binds judges deciding later cases to ensure consistent treatment and so that consistent principles applied to similar facts yield similar outcomes. In common law cases, where the parties disagree on what the law is, the court is usually bound to follow the reasoning used in past decisions of relevant courts. If the court finds that the current dispute is fundamentally distinct from previous cases, judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of common law systems, but connotations of the term "common law" vary according to context, both in present-day use and historically.                                                

MERCI MERCY

We have had a visitor from London in the person of Clare Clifford, seen here on arrival at La Gare du Nord.

Followed by lunch at Chartier, and a little tour around the town.  One small item caught the attention. The name of this restaurant. Its numerous translations made one smile. Sea sea, mer mer, si si, mercy, merci, sea mer etc... I do not know if they serve bouillabaisse, but one would assume if it is on the menu, given the fluidity of the name, that it must contain a great variety of sea creatures to feast upon. The French love their puns, but combining it with English is a measure of their capacity to be inclusive. They have been friendly, welcoming and forthcoming with advice of exhibition, food salons, wine and any variety of matters; however, when meeting a neighbour for the first time, one says "Bonjour, je m'appel Edward et je suis au troisiemme gauche" you get "Enchante, bien venue, bonne journee" but no name is ever attached. It's as if the mentioning of one's name is not heard, or not taken as an indication that it would be nice for names to be exchanged. They readily shake one's hand and say pleasant things, or air kiss cheeks (between 1 and 4 pecks depending on circumstances) but do not give their name. This could make them appear to be standoffish. Indeed I'm sure it does. But is it only the British who volunteer their name? 

Last weekend we had a visit from Ian Jones and Christine Bleathman who came to celebrate Ian's birthday. An evening meal at Bofinger by the Bastille, with various Alsacien delights of choucroute with a variety of accompaniments. Celia was not enthralled but I believe the visitors quite liked it, or at least said the did. I had the Bofinger special choucroute with a variety of pork sausages, all of which were lovely, but then I have the middle European roots which delights in such food. The following night was a night at the Opera. At l'Opera bastille we were treated to some rather beautiful voices giving us Lucia de Lammermoor. The sextet was quite wonderful and greeted with lots of applause and Bravas. Just as the piece was about to start, we were encouraged by the ushers to move forward into the empty expensive seats. A standard procedure it would seem. Very nice and thoughtful.

 

Chi mi frena in tal momento? Chi troncò dell'ira il corso?
Who restrains me at such a moment? Who disrupts the course of anger?  

As to La Philosophie du Droit, the first essay has been achieved. I do not know if it is at all what is wanted,  but it's what being offered up.

It should be noted that David Hume died in 1776 during the first year of the American Revolution which decreed “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, liberty, and the pursuit of happiness.” and Adam Smith died in the first year of the French Revolution on the 16^th July 1790 almost exactly one year to the day. That event gave rise to the motto ‘liberté, l'égalité fraternité’ and The Declaration of the Rights of Man and the Citizen, the first two articles of which are:

Article I - Men are born and remain free and equal in rights. Social distinctions can be founded only on the common good.

Article II - The goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression.

The Charter of Fundamental Rights of the European Union defines and enshrines in law certain conventions to establish the rule of law for the protection of the supreme dignity and integrity of the individual, that all are subject to the law and that all are equal before the law. There are 54 articles divided into seven titles covering Dignity or the right to life, prohibiting torture, slavery, the death penalty..; Freedom, liberty, personal integrity, privacy, thought, religion, expression…; Equality, equality before the law, prohibiting discrimination based on disability, age, sexual orientation, culture, religion…; Solidarity, working condition, right to work, unfair dismissal..; Citizen’s Rights, right to vote,…; Justice, presumption of innocence, fair trial, etc…; and various general provision of interpretation.

It is clear then, that human beings have progressed to believe in terms of fundamental human rights as matters which are self evident. From a natural disposition to be free and a capacity for empathy, to speak freely, to think freely, to have dignity and respect, arise the conventions of a more enlightened society. There was a time, not so long ago when the convention was that homosexuality was a disease and criminally deviant inappropriate behaviour. We now have same sex marriage. There was a time, again, not so long ago, when the convention was that a wife was her husband’s property, a man could not be found guilty of raping his wife and was allowed to beat her with a stick no thicker that his thumb. There was a time when the convention was that slavery was an established economic reality. Unfortunately there are current societies where these conventions are still held to be true.

Ultimately a human being does understand the concept of justice. Natural feelings of resentment spring up when we feel slighted in some way, or are simply ignored. We feel satisfaction when that slight is redressed. We feel happy or contented when we are taken into account, loved and cared for. Likewise when one feels cheated or put upon, feelings of anxiety and emotional hurt come to the surface. People recognise dishonesty and pain, both physical and mental. These are all natural human emotions, and it is these feelings which well up or subside when we see others going through whatever situation may cause them grief or joy. It is through these emotions that we negotiate our interaction with society. Some are more active than others, more ambitious or industrious, whilst some are more retiring and not so forthcoming. Whatever the inclination our feelings and emotions are very similar to one another. A desire for some recognition and respect for our individuality is a simple request.

Whenever these fundamental feeling have been suppressed or thwarted, whenever people have felt aggrieved by some insult or injustice, wherever people have felt oppression in sufficient numbers there has been revolt. In the main the popular outcry of these revolutions (the historical list goes back to 2730 BC ) has been ‘freedom for the people’ and a demand for ‘people’s rights’. All too frequently there have been groups of individuals who have attempted, and succeeded, throughout the ages to impose particular ‘conventions’ on others. This has led on several occasions to world conflict. The institutionalised racism of the Nazi regime is one of the more dramatic and calamitous instances of a convention of intolerance. Ideas and attitudes as to how things should be done can easily become a convention and then be enacted into law. The Nuremberg Laws of 1935 were the culmination of a systemic anti Semitism which existed in Middle Europe.

It is not surprising then, that following on from the momentous revelations of the Second World War that matters were taken in hand and a world of jurists were brought together. In 1959, a conference was held in New Delhi in India. A gathering of over 185 judges, lawyers and law professors from over 53 countries round the world, came together as an International Commission of Jurists to discuss “The rule of law in a free society”. We've still a long way to go.