February 23, 2011

Dear Cyndy,

Thank you for your letter.

Mengs' LSAT question: "Trace the origin of law to the characteristics of human character and show how these characteristics explain the inadequacies and failures of adjudication," is an obvious invitation to what, when I was in college, we used to call "bullshitting". It would surprise me if this uncouth formula was not also indigenous to Wittenberg.  The question seemed - and seems - to me obvious, and presented itself to me without much effort. I feel no need to apologize for asking, I do sense a need to apologize for presuming to answer it.  Of late I have become somewhat of a nominalist, more and more persuaded that it is language itself which spawns the concepts with which I try to characterize my world; in other words, rather than being derived from what I myself have seen and heard, my account is a linguistic exercise which fashions a spurious "reality" that supplements my experience.

In any event, what Mengs asserts in his dungeon essay is that law must be understood as a subset of, and exhibiting many of the shortcomings of language. Like language, law is incapable of insinuating itself into the nooks and crannies even of objective experience, and is quite helpless in expressing the subtleties of feeling. The language of law oversimplifies experience for which it proves an inadequate substitute. Mengs identifies the subjunctive as the mode of poetry, the indicative as the mode of science, and the imperative as the mode of power. He points out that speech is uniquely memorable, because it is action, and as such is productive of synthetic experience which is readily confused with the actual world. Mengs finds it noteworthy that aside from the primal act, divine creation is reported to have been a series of rhetorical exercises: "and God said ..." (Genesis 1:3,6,9,11,14,20,24,26,29...) The Word of God was the instrument of creation.  Mengs further points out that the issuance of objective, tangible, demonstrable law, (Exodus 20: 1-17) is a contradictory exercise, which controverted the ineffable subjectivity (Exodus 3:14) of the Divine and became the framework of the subsequent legal perplexities of human existence.  The identity of the authorities which graded Mengs' examination paper is unknown, but presumably, even though he did not precisely answer the question that had been posed, he passed, perhaps even with an honors grade, and was permitted to escape from the subterranean dungeon into the empyrean precinct of the Harvard Law Library.

You and Ned stay well, while I function as speech-writer for another of my novel's protagonists, Maximilian Katenus, providing him with the text for the lecture that he delivers, again in a dream, before the Svenske Akademien in Stockholm on accepting the Nobel Prize for literature. As for your own writing, my advice to you is: write with abandon. Don't censor yourself, and don't be inhibited by the potential criticism of hypothetical readers. There needn't be any, and if there are, and they don't like what you've written, it will be their bad luck. But do send me a copy of what you write.

Jochen

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