Acts of Hope: Creating Authority in Literature, Law, and Politics.

• Author: Ayer, John D.

I would rather prove my self to be a Gentleman, by being learned and humble, valiant and inoffensive, vertuous, and communicable, than by a fond ostentation of riches

Izaak Walton(1)

In the comedy revue "Beyond the Fringe," Jonathan Miller puzzled over the sign that used to appear in railway restrooms: "gentlemen lift the seat."(2) Is it descriptive, in the sense that lifting the seat is a condition, perhaps a necessary condition, of the state of being a gentleman? Or is it normative, in the sense that a gentleman should lift the seat, whether he does so in fact or not?(3) Or is it injunctive-celebratory, in the sense of "gentlemen, start your engines," or perhaps "God save the queen"?

Miller's durable sendup, like most good comedy, presaged something larger about the society that brought it to birth. Miller bespoke and encouraged -- it is always hard to disentangle threads like these -- a critical shift in self-consciousness in the British upper middle class. Others might want to call it the rise of Thatcherism in recognition of the in-your-face, grocer's-daughter conservatism that held sway in Britain through most of the 1980s. I would rather call it the decline of the Butskellites. You remember the Butskellites: the allies and followers of "Rab" Butler, Conservative, and Hugh Gaitskell, Labour, the two greatest "Prime Ministers" Britain never had who shaped and defined so much of the first generation of postwar Britain -- the years, shall we say, between the coronation of Queen Elizabeth II in 1953 and the investiture of Prince Charles in 1969. The Butskellites represented a cozy, meliorist, reassuring sort of centrism when the female royals still slept with their own husbands and the family doctor down at the National Health Service surgery was definitely "in."

James Boyd White, Professor of Law and English and Adjunct Professor of Classics at the University of Michigan, is a gentleman and a Butskellite -- perhaps the last Butskellite. In his books and essays, White does not use the word "gentleman" unduly. This is, however, only proper. A gentleman certainly should not call attention to himself, and preaching about gentlemanliness would be vulgar and self-defeating. Still, White's credentials are impeccable. Being born an American is no disability, of course, certainly not if you went to Groton, that most British of American private schools, as White did. Groton, as White himself candidly recalls, "had been founded in the nineteenth century on the model of the English public schools with the aim of recreating in America something of the ideal of the English gentleman. In a rather sentimental way it idealized England, Episcopalian Christianity, genteel country life, and high culture...."(4) From Groton White went on to Amherst College, where he was told that "[c]onduct befitting a gentleman is expected at all times...."(5) From Amherst he proceeded to the Harvard Law School, where he served as an editor of the law review -- in the company of Stephen Breyer, now a Justice of the Supreme Court. But one gets the sense -- though White himself might well contest the point -- that Harvard was something of an afterthought: the qualities and even the skills that give him his character seem to have been shaped before he went there.

White is not a gentleman merely by education, however. For more than a quarter century, he has occupied himself with the most gentlemanly of activities, the professing of law in the grand style. Law certifies him for a place in the American aristocracy, though it surely would not do so in the British aristocracy; his cross-appointment in the Department of English secures his claim to seriousness on matters of morals and aesthetics. Whatever White's reticence about his own gentlemanly qualities, it is fair to say that he has made it his mission to try to instruct in the ways of a gentleman, and thus to confront, and often also to ponder, the pedagogic mysteries that underlie this curious practice. Acts of Hope: Creating Authority in Literature, Law, and Politics embodies the most recent product of this long inquiry and is welcome by anyone who has enjoyed or been instructed by his previous ventures.

Hope is White's sixth book, or seventh, depending on when you count his other book published at the same time, This Book of Starres.(6) White began his career with The Legal Imagination,(7) which is nominally a coursebook, but, in terms of conventional genre boundaries, it is surely one of the most original and unexpected coursebooks ever to appear. In truth, Legal Imagination had its provenance, as I will try to show hereafter, but this fact does nothing to lessen its merit. Next came Constitutional Criminal Procedure,(8) another coursebook -- perhaps slightly more conventional -- which was a joint product of White and his former student James Scarboro. There is every reason to believe that Scarboro, who has since left academia for a distinguished career at the bar, was a full partner in the enterprise, but the project bears many earmarks -- including the quirks -- of White's distinctive style.

After Criminal Procedure there was a gap of sorts in White's writing. White published some articles in respectable journals, but he generated nothing like the torrential outpouring seemingly so typical of his colleagues at the University of Chicago. He seemed to stand as something of an outsider, almost a curiosity, in the dramatic arena of law scholarship. In 1984 White published his first "real" book -- When Words Lose Their Meaning.(9) Students of Legal Imagination could recognize it as the narrative substructure of that coursebook -- a kind of a pony or teacher's manual for the earlier work. Words got respectable and generally favorable recognition in the academic press.(10) Other scholars, meanwhile, seemed to catch up with White. The trope of examining "legal" materials on the model, or with the devices, of "literary" studies appeared to gain currency, and White seemed to find himself, perhaps to his surprise, at the head of a small parade.(11) Perhaps his new notoriety spurred him on; new work seemed to come forth in somewhat quicker succession. Heracles' Bow(12) appeared in 1985; then Justice as Translation(13) appeared in 1990. By this time, White had achieved a modest eminence; he spoke at a plenary session of the Association of American Law Schools' convention in New Orleans in 1989. Now, he has written Hope and Starres.

Although it may not always have been apparent to his readers, White had a fairly clear notion of what he was trying to do from the start and of how he was trying to do it. In the introduction to Legal Imagination, he said: "[A]nyone who knows Theodore Baird of Amherst College will instantly see that this book is the direct result of his teaching, full of his ideas and imitative of his style; and to such a one, nothing here that may please or instruct will be new or unfamiliar."(14)

Baird is one of those remarkable academic figures who exist more often in folklore than in biography. Although he seems not to have published frequently, he passes into legend as the friend of writers as various as James Merrill and Scott Turow and as the proponent and exemplar of a particular kind of teaching. Particularly at this late a date, it is probably impossible for an outsider to capture precisely what Baird proposed. We do, however, have some fragmentary shards of evidence. William H. Pritchard, himself once a student and later a professor of English at Amherst, has written of his own experience as a student in a course that Baird inspired. It was the required first-year composition course: "[It was] a brilliantly original approach to writing as an activity. That activity, performed by us three times each week -- in short responses to difficult, sometimes impossible questions about thinking, meaning, knowing, and other essential human pastimes -- was my introduction to serious intellectual inquiry."(15)

In Starres, White apparently speaks of the same course -- a course, as he says, "that shaped much of the life of the college; we learned that in our writing we spoke in voices that defined us, and our readers, and the relation between us. Writing is the creation of a self, as one of the teachers put it...."(16)

Writing is the creation of a self. The phrase is pivotal. You almost might be tempted to say that he is engaged in "the teaching of ethics." But this phrase is slippery at best, and I suspect White himself would avoid it, for reasons that a moment's reflection will make manifest. Any law teacher with the most elementary sense of history will recall the transports of anxiety that accompanied teaching ethics over the past generation. Its potted history is easily retold; in the undertow of the Watergate scandal, someone noticed that an inordinate number of the malefactors held law degrees. Law professors had failed the public, so went the standard litany, by propagating such a generation of knaves and scoundrels, and we were enjoined to "put our house right." Responding with a kind of panicky alacrity, the legal education establishment started slapping "ethics" requirements on just about everything: the law curriculum, the bar exam, the continuing education agenda, and so forth. A few...