One of the world’s greatest possible book titles was pre-empted by the humanist poet Francis Petrarch in the 1360s when he published his little treatise entitled Concerning His Own and Lots of Other People’s Ignorance (De sui ipsius et multorum ignorantia). The crisis in our endangered American democracy is everywhere in the news these days, and its root causes identified with varying degrees of plausibility: too much polarization in politics, too much money in politics, too little talent among politicians, gerrymandering, voter registration, voter suppression, voter fraud, voter apathy. Perhaps we ought also to include Petrarch’s suggestion among the dangers.
At both federal and state levels there are three branches of American constitutional government: the legislative, the executive, and the judicial. For many years now a journalistic quiz conducted among eligible voters--the Annenberg Constitution Day Civics Survey—has tried to get a rough idea of what Americans actually know about the most basic rules and procedures by which we are governed. In recent years, with only slight percentage variations, only one third of Americans have been able to identify the three branches of the government. That closely approximates the percentage of college graduates in the country, but there is less overlap than you might think.
Events of the past week suggest that many of us would benefit from a crash civics course. Two of the branches were on conspicuous if controversial display: the legislature in the House of Representatives in Washington and the judicial in a courtroom in Wisconsin. The wonder of it all is that despite powerful distractions, partisan passions, and much unbalanced and even erroneous commentary from major news sources, they actually worked. What I mean by this is that lawfully elected political representatives and a duly empaneled jury of our peers came to reasonable conclusions within the framework of our consensual social contract. This does not mean that spending a huge amount of money we do not actually have is now an idea beyond cavil or that Kyle Rittenhouse is a “hero” rather than a dangerously undisciplined youth. But it does mean that although nearly drowned out by all the clunky noises, our democratic processes actually were functioning.
Though the passage of the “infrastructure bill” was in my opinion the more significant event of the week, it seems to have been the criminal trial that has most ominously inflamed passions and most clearly vindicated Petrarch’s title. Ignorance of the law may be no excuse for criminal perpetrators, but it was nearly the default position of some eminent journalists who wrote about this case with passion, disseminating as they did so inflammatory untruths. I would say “on both sides” if that phrase did not so basely betray the ideal of impartiality allegorized in Justice’s blindfold. Fiction can indeed illuminate the inadequacy of our apparatuses of human justice, but it should do so honestly as fiction, not under the false flag of “reporting.” All literature professors have to be Aristotelians if we want to keep bread on the table. In his famous defense of the moral utility of fiction against radical Platonists who gave poetry the ethical status of a reflection in a mud puddle, Aristotle pointed to fiction’s moral clarity. You can have all the messiness and ambiguity of reality, but without the occluding tedium and irrelevance. Imagine facing Jardyce and Jarndyce from Bleak House as lived reality!
As I look back at the past week, several novels dealing with adversarial legal proceedings come to my mind, including the only novel that many American high school graduates seem to have heard of, To Kill a Mockingbird. Literary "courtroom drama" is pretty common, and a few great writers have created it with genius. Of them few have been more interested in the ambiguities of justice, especially in the disparity, or rather the unbridgeable chasm between a Providential order and the imperfections of the human legal system, than was Dostoyevsky. Crime and Punishment was published only five years after the reforming Czar Alexander II, the “Liberator,” introduced the innovation of the “English” trial by jury into the Russian legal system in 1864. Historians tell us that part of the contemporary impact of the trial scene in The Brothers Karamazov (1879) for its first Russian readers grew out of its still comparative novelty. The twelfth book of Karamazov is certainly one of the greatest courtroom scenes in literary history, and like most of the others, it is rather disconcerting. There’s a clue in the book‘s title: “A Judicial Error”. Forty years later the whole “bourgeois” system would be overthrown by “revolutionary justice”, in which “individual rights” played no role. Justice was what the Party defined as justice as, like a meandering stream, it moved through history to the dictates of dialectical necessity. This, indeed, put an official end to judicial errors, as Solzhenitsyn underscores in the sardonic title to one of his short novels: We Do Not Make Mistakes. Democracy is said to be the worst possible system of political organization except for all the others. Something analogous could be said about our imperfect system of trial by jury.
For our justice system is full of mistakes. How can it fail to be? It must necessarily wade through the morass our own and many others’ ignorance. What is necessary but also necessarily imperfect demands ethical delicacy. In Dostoyevky’s novel the famous big city defense lawyer Fetyukovich—the Johnnie Cochrane of Saint Petersburg, so to speak--passionately invokes in its secular form an ancient theological maxim: sins of commission are more serious than sins of omission. In our legal tradition this appears as “Blackstone’s ratio”—referring to William Blackstone, author of the Commentaries on the Laws of England. Blackstone writes: It is better that ten guilty persons escape than that one innocent suffer. I hope that might be something close to the actual traffic of our criminal courts even if it necessarily means that many, many felons walk free. Yet how frequently do we find this spirit among zealous prosecutors, or the zealous commentaries of journalists? The frequent fallibility of sanctioned police forces and established courts is paradoxically outstripped by the vigilantism that lawlessness ostensibly justifies. I’m not a regular reader of Westerns, but I am a supporter of the Library of America, and not too long ago I got their anthology simply entitled The Western. All the novels it brings together are good reads, but one of them deserves a permanent place in that rare category Virginia Woolf called “novels for adults”: The Ox-Bow Incident by Walter Van Tilburg Clark (1940). In addition to being what is usually called a gripping story, it cocoons a work of political theory at least as challenging as the treatises of John Locke and rather easier to understand. It is set in the nineteenth century, of course; but it is as fresh as this week’s news. Good guys with guns. Defund the police. The Helping Hand Strikes Again.
The week’s events set me searching my shelves for one last novel. I couldn’t find it, but Joan turned it up immediately. It is a golden oldie, A High Wind in Jamaica by Richard Hughes (1929).* Our particular copy is a particularly precious oldie, a Modern Library hardback in its dust jacket with a printed price of 95¢! (Pennies long since being meaningless, the “cent mark” has disappeared from the computer keyboard. You now have to seek it out among “Advanced Symbols”.) If you have not read this book you will want to do so. I will be a little coy about describing it and say it is a story about the unspeakable guilt of innocence. In only slightly less cryptic terms, those of an excellent introduction by Isabel Patterson, it is “an account of the melancholy fate of a crew of well-meaning pirates who fell into the clutches of half a dozen children.”
Perhaps the
novel is not the ideal mode for the advancement of serious political
discussion, but it sure beats Twitter. Not
a great deal that is profound can be reduced to 140 graphic characters, but in
an age before “social media” Robert Goheen, a great president of my university,
once did it in fifty. I was then much
younger, and much more certain about things than I am now. After I had generously shared with him one of
my certainties, Goheen paused, then replied gently, “John, never be sure that
you are more than about 80% right.” This perhaps complicates matters. As I read the reactions to this week’s news I
conclude that the worst aspect of my and other people’s ignorance might be the
part that thinks it knows too much.
*published in England under the title The Innocent Voyage
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