Beaglehole

Reading 'JC Beaglehole: Reputation, Fortuna and Biography' [PDF], a gracious tribute by Doug Munro to the underrated John Beaglehole(1901-1971) in 2 Journal of Historical Biography (2007) 1-32.

Munro explains that -

This essay is not intended as a review article of A Life of J.C. Beaglehole, although I engage with the biography here and there. My purpose, rather, is to trace the trajectories of J.C. Beaglehole’s reputation, using the biography as the empirical bedrock, but drawing on other sources as well as on my wider experience. The word "trajectories" is used quite deliberately to signify that reputations have multiple dualities—earlier and later, contemporary and posthumous, public and private, intellectual and activist—and to indicate that reputation is both unstable and often contested. Beaglehole was initially made to suffer for being regarded in conservative circles as a dangerous young radical, but a change of government brought patronage and preferment. This, in turn, leads to an examination of the extent to which individual reputation is a function of the wheel of fortune and of the degree to which the interplay of institutional and intellectual structures is predicated on personal preferences toward an individual. Finally, I look at Beaglehole’s posthumous scholarly reputation and make observations on the role of biography in raising or lowering a reputation, as the case may be. There is a certain irony in discussing Beaglehole and reputation in the same breath, because his unusual combination of self-assurance and genuine modesty rendered him remarkably indifferent to what others thought about him. He was not devoid of ambition — far from it — but he avoided the limelight, resisted celebrity status, and just got on with the job.

Munro had earlier commented that -

There is no question that Beaglehole’s scholarship was highly regarded during, and immediately after, his lifetime. He was, Gavan Daws told a group of Pacific historians at a seminar in Canberra in 1973, “the greatest of us all.” But reputation is unstable and has a chimerical quality: it comes and goes as fancy chooses, a victim of changing fads and fashions. Or as Stefan Collini has put it:

There is an inescapable indeterminacy about all questions of reputation where literary and intellectual figures are concerned. Membership of the jury is heterogeneous and potentially infinite; the various parts of a writer’s oeuvre or achievement may merit different ratings from different categories of reader; it is almost impossible to maintain a clear distinction between questions of merit and neighbouring territories of celebrity and utility; and at any given moment judgement is almost inevitably contaminated by hearsay, selective recall, and cultural lag.

Cultural lag is an appropriate term: it would be fair to say that Beaglehole, whose scholarship was so highly regarded in his lifetime, is out of favour in some quarters and that his reputation among Pacific historians is not quite what it once was. In the three and a half decades since his death, shifts in the way historians view the past have sometimes been unkind to Beaglehole. As Jane Samson has put it, “a new set of church fathers and scriptures has been proclaimed, and the usual search for heretics is on.” The other side of Beaglehole’s reputation is based on his civic engagement as a public intellectual, and this aspect of his life met with a mixed reception among contemporaries. Revered in some quarters, this introspective and somewhat retiring man was viewed askance in anti-intellectual circles and by New Zealand’s conservative National Party government. ...

That reputations come and go was graphically illustrated in a 2005 poll, conducted by Prime Television New Zealand, to identify and rank "New Zealand’s 100 History-Makers". Those polled placed the scientist Lord Ernest Rutherford, another New Zealander who has been admitted to the Order of Merit, at number one. Beaglehole missed out altogether, although two other historians were ranked sixty-third (Michael King) and eighty-seventh (Keith Sinclair). Neither, were they still alive, would have ranked himself ahead of Beaglehole. The omission of Beaglehole reflects the sheer capriciousness of such media circuses — for example, there was a comedian on the panel and two comedians were among the chosen one hundred. It also illustrates the extent to which reputation can be unrelated to actual achievement, how a posthumous reputation is apt to slide, and how people are unconsciously inclined to withhold recognition from those in walks of life different from their own. All the same, the aberration of Beaglehole’s omission may not have come about had the major biography by his historian-son been published a year earlier, in time to have brought Beaglehole to the panelists’ attention.

Biographies, of course, can be reputation-breakers as well as reputation-makers. For politicians, the so-called accolade of a biography can cut both ways — notable examples being the disintegrating effect that successive biographers have had on the once-high reputation of British prime minister Stanley Baldwin and the recent attempts to rehabilitate Baldwin’s successor, Neville Chamberlain. Biographies of historians are comparatively rare, typically expressions of avowal and affirmation, and distinctly elitist in the sense that only major historians enter the hall of biographical fame. Despite a roll-of-the-dice element in who gets chosen, the very fact of a biography is a measure of that historian’s significance. Sometimes they are rescue missions, attempts to restore to proper prominence historians who, in their biographer’s view, have been condemned to unjustifiable abeyance. Conversely, there are attempts to explain and celebrate the recrudescence of a reputation. Tim Beaglehole’s biography of his father, who was a major figure in New Zealand cultural and intellectual life as well as an outstanding historian, fits neither category. But it does invite reflection on the role of a biography in matters of reputation.

Simpson on Hart

And from the review noted in the preceding post, Simpson on Hart's The Concept of Law -

Herbert's major contribution to the philosophy of law was certainly the concise and highly readable The Concept of Law, although it is one of those books that becomes more difficult the more often it is read. ... As is the way with notable books, it has spawned a very considerable secondary literature, and the academic career of Ronald Dworkin was launched by his self-presentation as Herbert's major critic.

Simpson goes on -

At the time when this book was written, the principal function of legal philosophy was to provide an answer to a very general and extremely puzzling question, "What is law?" This was not a practical question; those who asked it and spilled much ink in attempting to answer it were commonly well versed in the practicalities of operating a legal system — giving legal opinions, arguing legal cases in court, delivering court judgements, or whatever. It was a question of a conceptual nature, about meaning. Herbert argued that it was more useful to identify a number of distinguishable puzzles, or intellectual anxieties, that underlay the general question, and he thought there were three of them.

One was the relationship between law and force or coercion: is a legal system best understood as a system of instructions backed by coercive force? The second was the problematic distinction between law and ethics or morality — how, for example, does a legal obligation such as paying taxes differ from a moral or ethical obligation to pay taxes, if indeed there is such a thing? What is the connection between law and ethics, and is some kind of relationship necessary to the very existence of law? The third is less easy to state simply; to what extent is law a matter of rules? This in its turn generated a number of subsidiary issues. What is a rule? What do we mean when we say a rule, or a legal rule, exists? What does it mean to say that courts apply legal rules, and is it in any sense true that they do so? Since Herbert's time, the emphasis in western legal philosophy has been on the analysis of the process of adjudication, which closely relates to Herbert's third issue. Thus Dworkin’s legal theory is concerned with little else, and not even with adjudication in some general sense, but only with adjudication by the Supreme Court of the United States. But Herbert's The Concept of Law does not explicitly have a great deal to say on adjudication as such. It does, however, have a great deal to say on a further question that did not feature in the trilogy I have set out — what is meant when we say that a legal system exists? In what sense do laws form a system, and what is meant by existence when predicated on such a system? Can laws exist without forming part of a system?

Although Herbert set out to write a book on the concept of law, he ended up writing a book on the concept of a legal system.

In characterising reception Simpson comments that

The secondary literature is now immense, and the publication in 1998 of a fragmentary reply to his critics on which Herbert worked for many years has spawned a further secondary literature in the collection of essays published in 2001 as Hart's Postscript: Essays on the Postscript to The Concept of Law. In a sense it has been downhill all the way—downhill, that is, from the lucidity and elegance of Herbert’s writing to the unattractive elaborations of some of his critics and defenders, downhill from Herbert’s direct analysis of law and legal institutions to writings about what other people have said about what other people have written about law and legal institutions. In British military circles there was, in my time, a bawdy monologue, much recited in pubs, which took the form of a bestiary. One of the creatures featured in it was the Fu-Fu Fly, which was said to fly in ever diminishing circles until it finally vanished up its own bottom, from which secure if unsanitary location it looked out at the world with scorn and derision. That, leaving on one side scorn and derision, is more or less the present picture in relation to much of the secondary literature on The Concept of Law. ...

If you think philosophizing matters — and I have always wondered how the question of whether it matters could be answered, or indeed whether the answer matters one way or the other — then the principal merits of Herbert’s distinguished book do not lie in the solutions offered by him, but rather in the identification and analysis of the problems presented by his attempt to elucidate, as he put it, the concept of law.

Bad Mr Gellner and Naughty Mrs Hart

AWB Simpson's review in 104 Michigan Law Review (2006) 1437-1459 of Lacey's 2004 A Life of H.L.A. Hart: The Nightmare and the Noble Dream notes that -

At this time, the Oxford philosophers, especially the group to which [Hart] belonged, were extremely confident of the significance of their work. Their lack of self-doubt was indeed to be little dented by the publication, in 1959, of a devastating criticism of the movement, Ernest Gellner’s Words and Things. Their initial reaction was the same as that of current law and economics devotees when they are confronted with radical criticism to which they can think of no response; they either ignored it, or were enraged by its impertinence, or both. Thus it was that the leading British philosophical journal, Mind, then edited by Gilbert Ryle, using what was known as the reversed in-tray system [Articles submitted were placed in a tray, and when publication of the next issue was imminent, the editor picked out from the top of the pile sufficient pieces thought publishable to fill the next issue. No system of peer review then complicated the task of the editor, whose decision was final], refused to review Gellner's book at all, a decision that gave rise to public controversy

Simpson goes on to offer other comments that will delight UC law students -

The practice of circulating and indeed selling copies of notes of lectures was then quite common. Indeed, some lecturers delivered their lectures at dictation speed; it was part of the lore of the school that William Holdsworth, the legal historian, who died before my time, used to repeat each sentence three times through his walrus moustaches: "The law of England, I say the law of England, the law of England ..." By this time even the most inattentive students would be aware that it was the law of England that was under discussion

and could presumably go back to sleep.

I can well recall my own astonishment when, after I had left Oxford, I learned that he had suffered a breakdown, triggered by Jenifer [Hart]'s public announcement of her early career as a communist spy in waiting. This had inevitably given rise to speculation that Herbert himself had been a spy. He had been hospitalized in the Warneford psychiatric hospital, commonly called Warneford College for the many students and occasional dons who passed into its care; it was under the supervision of Dr. Seymour Spencer, who had great problems in recalling the names of the other doctors who worked there. For a don to go there was unusual indeed. Some degree of psychological disturbance was as commonplace in Oxford as it is in American law schools, but was not usually viewed as a reason to seek medical care.

Strange creatures, those academics.

Waissman, a refugee who was a sad, lonely, and to some degree embittered person, died in 1959. Herbert attended his funeral, and arrived late and shivering for the meeting of the discussion group in consequence. He explained that there was no religious ceremony, and the philosophers, after silently consigning Waissman to his grave, were about to leave, when Gilbert Ryle, feeling that something should be said about the deceased scholar, leapt onto a convenient tabular grave stone and delivered an extempore Periclean funeral oration. It was raining heavily and blowing strongly at the time, and the proceedings, conducted by the Oxford philosophers all attired in soggy, flapping academic dress, resembling nothing so much as a group of immense crows clustered around carrion, excited the puzzled curiosity of some passing peasants.

Court information

Considering the Court Information Bill (NSW) [txt] at the moment. The object of the proposed statute - which follows a 2008 Report on Access to Court Information for the NSW Attorney-General - is "to establish a new system for the provision of access to information held by courts in New South Wales", including -

(a) open access to certain court information, known as open access information, unless the court otherwise orders in a particular case,

(b) access to information, known as restricted access information (being information that is not open access information) if access is permitted by leave of the court or by regulations under the Act,

(c) access by news media organisations to certain restricted access information,

(d) access by parties to proceedings to any court information relating to the proceedings,

(e) imposition of conditions on access to court information relating to the way the information is provided or that restrict the disclosure or use of the information,

(f) protection of privacy and safety of participants in court proceedings, including limitations on access to personal identification information,

(g) the protection of court information from misuse and unauthorised access, use or disclosure,

(h) methods of access to court information, including charging of fees for access.

The Law Society of NSW criticised particular proposals last year [PDF].

The objects of the proposed Act are to -

1) promote consistency in the provision of access to court information across NSW courts,

2) provide for open access by the public to certain court information to promote transparency and a greater understanding of the justice system,

3) provide for additional access by the media to certain court information to facilitate fair and accurate reporting of court proceedings,

4) ensure that access to court information does not compromise "the fair conduct of court proceedings, the administration of justice or the privacy or safety of participants in court proceedings", based on restricting access to certain court information.

Under the proposed Act the 'Open access information' (which any person is entitled to access, unless the court otherwise orders in a particular case), includes -

i) in relation to criminal proceedings - indictments, court attendance notices, police fact sheets and statements of facts,

ii) in relation to civil proceedings - originating processes and pleadings,

iii) written submissions made by a party in proceedings,

iv) transcripts of proceedings,

v) statements and affidavits admitted into evidence, including expert reports,

vi) records of judgments and directions given in proceedings.

Restricted access information (for which there is an entitlement for access only if permitted by leave of the court or by regulations made under the proposed Act) includes -

a) personal identification information,

b) medical, psychiatric, psychological and pre-sentence reports,

c) criminal records,

d) victim impact statements,

e) letters of comfort provided by the prosecution in connection with criminal proceedings.

When deciding whether to grant leave for access to restricted access information, the court may take certain matters into account, including the -

a) public interest in access to the information,

b) extent to which the principle of open justice will be adversely affected if access is not provided,

c) extent to which an individual's privacy or safety will be compromised by providing access,

d) extent to which providing access will adversely affect the administration of justice.

A court and regulations may impose conditions on access, including restrictions on the disclosure or use of that information.

The Act would provids for a media organisation to have access to certain court
information that is restricted access information (unless the court orders otherwise), including -

1) transcripts of proceedings in closed court or proceedings on a voire dire,

2) transcripts of and evidence in proceedings on an application to a court for an order to prohibit or restrict the publication or disclosure of information,

3) the brief of evidence in criminal proceedings.

A party to proceedings and the party's legal representative would be entitled to access any court information (in addition to open access information) that relates to the proceedings unless the court orders otherwise in a particular case.

There would be no entitlement to access to court information under the proposed Act if providing that access would contravene a court order or a provision of another law.

A court may refuse to provide access to court information in a particular case if providing access would require an unreasonable diversion of the court's resources or it is necessary to refuse access to ensure the safe custody and proper preservation of court records.

In its comments on the 2008 Report the NSW Law Society noted -

concerns about the proposal in the Report for a special role for media interests, and an ability on the part of those interests to access a greater range of court information than that which is available to the general public. While it is acknowledged that the media can and does play a vital role in ensuring the communication of material already available under open justice principles to the general public, it is not readily apparent in the Report why that role necessitates greater access to court information than would generally be available to the public as a result of the proposed recommendations. To look at it conversely, on what basis can it be justified that the general public have less access to court information than media interests?

It went on to comment that -

It is readily acknowledged that the media play a key role in giving effect to the general public interest in making justice visible and open. However, this role does not warrant access to a greater field of substantive information than would otherwise be available to the general public. The media may have a pecuniary interest in the ability to access information, and particularly in an ability to do so quickly. However, this does not warrant greater access, merely quicker access.

Further -

There is no basis provided within the Report to explain why closed court transcripts, which the Report recommends be designated restricted information, should be made specially available to media interests. It is logically inconsistent for the Report to recommend that the media be granted special access to transcripts of closed court proceedings when it is acknowledged in the report that such transcripts are inappropriate for designation as 'open access' documents. If the material information is inappropriate for access by the public, it makes little sense to allow media interests, presumably with an intent to report on the contents, special access.

The rationale relied upon in the Report for special media access appears to be that such media interests can be appropriately regulated and therefore restricted from publishing sensitive details and personal information. This rationale is evident from the Report's recommendation that only employees of regulated mass media organisations be designated as 'media' for the purposes of access to court information. It is submitted by the Committee that this is a misguided approach, and that the emphasis should be placed on a clear delineation between accessible and restricted information, with clear sanctions for the inappropriate use of restricted information. It is suggested that it is both more appropriate and more practical to regulate the access and use to which court information may be put rather than assigning some media with special access rights in anticipation that those media can be regulated, are reputable and can be trusted not to misuse sensitive and potentially damaging information.

Notwithstanding the above, it is acknowledged that in some closed court proceedings, a media report on the proceedings (with applicable limitations on the disclosure of identities etc) may be the only available method by which the general public will become informed. It may be important for the proper and open administration of justice that the public be made aware of the nature of proceedings while the identities of those involved (and other confidential or sensitive information) is otherwise protected from disclosure. Nevertheless, this would appear to be a matter of procedure for the court exercising the discretion to close the courtroom. It is submitted that appropriate measures and orders can be made by the court in such conditions allowing media access with any appropriate limitations on the right of publication that the court deems appropriate in the circumstances. It would appear unnecessary and inefficient to attempt to contort the principles of a court information access regime to allow for preferential media access in such cases. Doing so leads to a complicated access regime that the Report is directed at avoiding.

Happiness ...

... is having a draft accepted 'as is' by a law journal and having a conference pay your airfare as a speaker (my treats for the day).

Biometric registration

In September last year I noted razzamatazz regarding India's ambitious biometric national identity card, promoted as "pro poor" and as an anti-corruption mechanism.

A contact has pointed me to a new item in an Indian news service, which notes that as part of preparation in Gujarat for the 2011 census "a photograph and biometric data — including prints of all the 10 fingers of the hands - of all individuals above 15 years of age will be collected along with primary information about them". That data will be fed into the national database/s.

The report indicates that -

Initially, only the primary identification information about individuals will be collected; the photos and the biometric data will be collected at a later date. Anyone refusing to give the information sought by census officials can be fined Rs1,000.

Giving this information, Manish Bharadwaj, director of census operations, Government of India, said that this was the first time that the National Population Register (NPR) programme had been linked to the census exercise.

Participation is mandatory -

"Under the Census Act, it is mandatory for citizens to furnish information sought by census officials", Bhargava said. "Anyone who refuses to give the required information can be fined Rs1,000 by the designated officer."

Primary information about individuals ... will eventually form the database for the building of a National Population Register (NPR). In the first phase of the exercise that begins on April 21, census officials will visit every household in the state with two forms - one for the 'House-listing and Housing Census' and the other for personal information (such as name, gender, age etc) for the NPR.

"Individuals will be required to fill the NPR form along with the form for household census", Bharadwaj said.

We might however assume that some people will follow tradition and bribe a collector or two to subvert the registration process.

Two months after the task of collecting primary information from individuals is over, the work on their photo and biometric registration will begin. "The primary information, biometric data and the photos of the individuals surveyed will be handed over to the Unique ID Authority of India ... The authority will scan the data and match it with the national database to avoid duplication".

The UID Authority will provide the UID photo and biometric registration data to local authorities "so that people can inspect them".

A contact, knowing of my fondness for longhaired pigs, has meanwhile pointed to an post on the joys of Indian sanitation and the implications of not servicing illegal squatter developments. (Scroll down for the cute piglet)

biopolitics agitprop

'The Biopolitical Unconscious: Toward an Eco-Marxist Literary Theory' by Leerom Medovoi in 24(2) Mediations states that -

In keeping with Fredric Jameson's founding claim in The Political Unconscious that Marxism provides not just one more hermeneutics of literature and culture, but a project that integrates all other hermeneutics to their historical determination, this essay will argue that ecocriticism, perhaps the youngest of contemporary literary hermeneutics, likewise can and should be dialectically assimilated to the project of a Marxist literary and cultural criticism. In redescribing ecocriticism as the analysis of modern literature's determination by the category of the "environment" within the successive iterations of the capitalist mode of production, however, I will also argue that Marxist literary criticism must be inflected in a new way. Insofar as politics, understood in their broadest sense, designate social struggles over how life (human and nonhuman alike) will be used as a means to a collective end that is also life, I will propose that the "absent cause" of history, which in the proverbial last instance determines the form of modern literature and culture, must be understood as a biopolitical unconscious.

The craving for an ultimate and unconscious cause - exit God, hello the Marx Bros? - is reminiscent of claims by fans of the Akashic Field theory of "past, present and future universes" as an "evolving" "collective consciousness" that unites the living and dead and that provides an "empirical" "scientific" basis for human rights law. (I beg to disagree.)

Medovoi indicates that -

In recoining this classic Jamesonian term, I am joining it to Michel Foucault's well-known analysis of the rise of "biopolitics" during the early nineteenth century, the historical moment at which, Foucault argues, life itself for the first time became the object of politics. If, in fact, it was both human and nonhuman life that became explicit objects of regulatory or governmental power at around this time, as part of the political reckoning with the demographic and industrial revolutions of the nineteenth century, then for quite some time now we have been facing a political modernity in which life, or "bios", is at the core of capitalism’s mode of regulation. What the media typically call the "environmental crisis" is better understood as the current face of politics itself, namely the many different kinds of geopolitical struggle to reshape the circuits of power that flow between planetary life and accumulation on a global scale. Just as the early industrial phase in the capitalist mode of production established the preconditions for Marx's ability to critique and historicize the key categories of classical political economy, so now the contemporary movement toward a "green" regime of capital accumulation — one that seeks a "sustainable" relation to planetary life — permits us to historicize what Jameson called the "path of the subject", the key concepts, categories, or reading habits upon which ecocriticism depends: the "environment" or "ecology", indispensible abstractions that (like labor or exchange value) have only become generalized concepts through the work of an ensemble of concrete historical processes in need of investigation. A rigorous eco-Marxist literary criticism today will first need to grasp the historicity of these terms, and then retroactively develop a symptomatic reading of literary and cultural texts that attends to their complex determinations by the same biopolitical history of capitalism that (by way of a different circuit) gives rise to the critical apparatus.

Ending with a bang, not a whimper? Medovoi concludes that

Much of the rhetoric of ecopolitics today in fact works precisely in this historical tradition, arguing that we will have to "green" our relationship to the environment in order to make capitalism more sustainable. The political goal of a properly Marxist ecocriticism will not be to save the environment. It will be to abolish it.

Meanwhile, Fatema Ahmed in the LRB notes an interview with farceur Slavoj Žižek in Cahiers du Cinéma, in which he notes that his piece on Avatar was written without seeing the film -

as a good Lacanian, the idea is enough, and we must trust theory. Žižek promises that he will see the film and then write a Stalinist 'self-criticism'.

Presumably he'd get just as much publicity if he changed his name to Salvador Dali and aped the antics of Avida Dollars. Ahmed continues that -

The good Lacanian goes on to inform the Cahiers editors that he wrote about The Talented Mr Ripley before seeing it, and that although he has seen Psycho and Vertigo (the interviewers sound quite jittery by this point), there's a long chapter on Rossellini in Jacques Lacan In Hollywood and Out and, no, he hadn't seen the films when he wrote it. Out of respect for Lacan? Not this time: "As a good Hegelian, between the idea and the reality, I choose the idea."