What Americans and Israelis are saying about each other--but not to each other.
· James Risen, Yossi Klein Halevi
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· April 15, 2010 6:08 pm
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James Risen, a Washington-based writer, and Yossi Klein Halevi, a Jerusalem-based writer, have been friends since they both crashed the Nazi Party headquarters in Chicago as student reporters 30 years ago. They have been joking and arguing about news and politics ever since, especially when it comes to Israel and the Middle East.
This e-mail exchange began in the shadow of the dispute between the Obama administration and the Netanyahu government. It became obvious that Washington and Jerusalem were experiencing a failure to communicate, and so Risen and Halevi thought it might be valuable to lay out what Americans and Israelis are saying about each other—but not to each other.
Dear Yossi,
Early in the Bush administration, I attended a lunch meeting with the Israeli Ambassador to the United States, and was quite struck by the confident tone of his presentation. Without resorting to much diplomatic nuance, he made it clear that Israel, at least for the moment, had lost interest in engagement and negotiations with the Palestinians. Israel, he signaled, was ready to pull up the drawbridge.
That wasn't too surprising, given the series of Intifadas that Israel had recently suffered. What I did find intriguing was that the ambassador seemed to know something I didn't yet, which was that the Bush administration was ready and eager to go along with this new hard line Israeli position. What the ambassador was really telegraphing to a room full of American reporters was that George W. Bush—whose father had been tough on Israel—had quietly but radically altered the dynamics of the Washington-Jerusalem relationship in a way that the Israel government very much liked.
The Bush approach to Israel became publicly apparent soon thereafter, and for the next eight years, Israel was the recipient of a hands-off approach from Washington, one that placed virtually no demands on the country. George Bush and Dick Cheney viewed Israel as a full partner in their war on terror, and in the neoconservative drive to spread democracy throughout the Middle East. They were loathe to strain that partnership by trying to force Israel to restart serious negotiations.
So November 2008 must have come as something of a shock to the Israeli system. With the election of President Barack Obama, Israel could no longer count on coddling from Washington. Obama was serious about restarting the peace process, and so was his new Secretary of State, whose husband had pushed for peace until it hurt the last time around. George W. Bush was back in Dallas, buying a new house.
Support for Israel is deeply bipartisan in the United States, but Bush had fundamentally altered the political calculus on the issue, and so now, by demanding a real peace process, the Democrats must have suddenly all looked like Noam Chomsky to Israelis.
But there was something deeper going on in the United States than simply a new administration. Bush had exhausted the American people. Two bloody and costly wars in Iraq and Afghanistan that had dragged on for most of the decade had left many Americans with a serious case of Middle East fatigue.
With about five thousand American soldiers dead in the two wars, more and more Americans were eager for withdrawal from the region. What's more, the Great Recession had left millions of Americans jobless or even homeless, and fewer were willing to support trillion-dollar wars of choice.
When they did think about the Middle East, Americans thought about Iraq, Afghanistan, and their boys on the front lines; they didn't think about Israel and Israel's problems. They debated whether we had achieved victory in Iraq, whether sending more troops to Afghanistan would really damage al Qaeda, and what to do about Pakistan and the terrorist havens in its frontier regions. Anything in the Middle East that got in the way of American objectives in Iraq, Afghanistan, and Pakistan became an irritant.
Then there was the issue of Iran, and U.S. and Israeli attitudes here once again diverged. Iran appeared to be working on a nuclear weapons program, but more immediately, it was also playing a major role in Iraq, and if it so chose, could play havoc on American troops ready and eager to withdraw. Israelis looked at Iran and saw only the shadow of nuclear war; Americans looked at Iran and saw a regional player that had to be contained, especially in Iraq. Certainly Washington is concerned about a nuclear Iran, but most officials do not see it as an existential threat.
The bottom line—it is no longer September 12, 2001 in Washington. And that makes all the difference.
Best,
Jim
Dear Jim,
The Obama administration’s decision to provoke a crisis with Israel is based on a profound misreading of the last decade in Middle East peacemaking efforts. Israeli disillusionment toward the peace process wasn’t, as you write, only a result of Palestinian violence. It was because the Second Intifada occurred after Israel accepted a Palestinian state. When Israel endorsed the Clinton Proposals of December 2000 and received in return the worst wave of terrorism in its history, most Israelis despaired of a negotiated settlement. One result was the near-total collapse of the Israeli left which, tragically, had won the domestic argument over the untenability of the occupation, only to lose the argument over the viability of a peace agreement.
For all the skepticism, though, Israeli attempts to end the occupation continued through the Bush years. Prime Minister Ariel Sharon uprooted Gaza’s settlements, and the result was that Palestinian rocket attacks shifted from those settlements to Israeli communities within the 1967 borders. Sharon’s successor, Ehud Olmert, offered the Palestinians the equivalent of one hundred percent of the West Bank, with East Jerusalem as their capital. Palestinian leader Mahmoud Abbas, Olmert says, never even responded.
If the administration wants to make progress on peace talks, it should focus on the real obstacle—Palestinian refusal to confine the return of the descendants of the refugees of 1948 to a Palestinian state. That’s the reason why Palestinian leaders have rejected Israel’s offers for statehood. No Israeli government will agree to absorb descendants of Palestinian refugees into Israel proper. That would lead not to a two-state solution but to a bi-national state.
Yet the administration seems convinced that, with enough pressure on Israel, a peace agreement is within reach. That wishful thinking also ignores the rise of Hamas. Even if, by some miracle, Fatah conceded on the right of return, Israel is in effect being asked to cede the West Bank and East Jerusalem to half the Palestinian people, while remaining at war with the other half.
Tragically for Israelis as well as Palestinians, a two-state solution is hardly imminent. That doesn’t mean that negotiations are futile. There is much that needs to be done in the interim—increasing security cooperation between Israei and Palestinian forces, removing more Israeli roadblocks, encouraging Palestinian economic growth. But by focusing on the unrealistic goal of ending the conflict, Obama is blocking the possibility of achieving accessible goals.
Jim, you’re misreading Israeli attitudes toward Obama. Israelis aren’t astonished at the president for being serious about the peace process, as you put it, but because his efforts seem dangerously naïve. In demanding a cessation of building in long-standing Jewish neighborhoods in East Jerusalem, Obama created a precondition for negotiations which even the Palestinian leadership hadn’t previously insisted on. The absurd result was that Palestinian leaders refused to sit with the first Israeli government that had actually suspended building in the West Bank, even though that had negotiated with previous Israeli governments that had built in the territories.
Israelis aren’t looking for unconditional support from Washington, but they do expect friendship. There was widespread acceptance here of Obama’s demand for a West Bank settlement freeze, as a way of testing the administration’s premise that such a move might result in gestures of normalization from Arab countries. But even after building was suspended, no reciprocal gestures came. Where is the administration’s anger against Arab intransigence? Frankly, Israelis are wondering whether America under Obama can be trusted any more as an ally.
As for Middle East fatigue, Jim, believe me, I empathize. But if the administration persists in one-sided blame against Israel, its Middle East policy will implode. Israelis will not be bullied, even by friends.
Best,
Yossi
Dear Yossi,
Reading your response, I was struck that you seemed to miss the central theme of what I wrote. To repeat—the Obama administration and the American public now view Israel through the lens of the wars in Iraq and Afghanistan. The great irony of George W. Bush's global war on terror is that it has enmeshed the United States so deeply in the Middle East and the wider Islamic world that the nation has developed a myriad of new interests in the region, and they range far beyond those of the Israelis and the Palestinians, of the West Bank and Gaza. Like the British in the 19th century, America now has a series of interlocking agendas from the Levant to Central Asia. Israel is now just one piece in a strategic jigsaw puzzle, and, while no one would acknowledge this, its unique political status in Washington has been eroded.
This has happened because Israel is now, in effect, asking Americans to choose between what is best for Israel and what is best for American troops fighting throughout the Muslim world. Maybe Israelis didn't notice, but reports that General David Petraeus had warned of the threat to the American military from Israel's failure to reach a settlement with the Palestinians had a devastating political impact in Washington. (Despite his later denial, the words had the ring of a Washington gaffe, where someone tells an inconvenient and politically embarrassing truth that they later try to walk back.) He reportedly linked the lives of American boys to peace on the West Bank and Gaza. If that sort of linkage gains wider currency in the United States, the entire political dynamic between Washington and Jerusalem will be radically altered.
For a president who is surging troops into Afghanistan and struggling to deal with a corrupt Afghan president, a President who is sweating out Iraqi elections that could trigger another round of sectarian violence in Baghdad, and a president who is struggling to win over full-throated Pakistani cooperation for a campaign against al Qaeda, Israeli intransigence on housing units in East Jerusalem is a headache and a distraction. The biggest change from George Bush in the way President Obama is trying to run the war on terror is that he is serious about winning hearts and minds in the Muslim world. I guess the real question is this—does that put Washington and Jerusalem on a collision course?
Best,
Jim
Dear Jim,
You’re right: Israelis haven’t internalized the new America that has emerged from the Iraqi and Afghan wars. Maybe that’s because it’s too frightening for us to realize that Obama’s America appears to be adopting a foreign policy similar to Europe’s, which means relentless public rebuke of Israel without faulting the Palestinians for their repeated rejection of a two-state solution, and blaming settlements, rather than Palestinian refusal to accept the legitimacy of a Jewish state within any border, for the absence of peace.
As for Israel endangering the lives of Americans: Jihadists are attacking American soldiers not because Israel is building apartment building in Jewish neighborhoods in East Jerusalem but because those soldiers are occupying Iraq and Afghanistan. (For what it’s worth, General Petraeus has denied saying that Israel endangers American soldiers.)
Of course a solution to the Palestinian problem would ease tensions in the Middle East. That is as much in my interest as yours: The Palestinian problem threatens Israeli boys far more than American boys. I am ready to make almost any concession that would end this pathological conflict, provided I sensed that Israel would receive security and legitimacy in return. And that of course is the problem. Most Israelis are convinced that, under current conditions, a Palestinian state would only result in greater terrorism and instability. American pressure will not likely force us to take risks we perceive as existential.
The Netanyahu coalition is the first Israeli government to suspend settlement building. Yet instead of demanding reciprocal Arab gestures of goodwill—or even that Palestinian leaders return to the negotiating table—the administration has intensified the pressure on Israel, with an unprecedented ultimatum over Jerusalem.
If the administration were to pressure the Palestinians and their Arab allies as it is pressuring and humiliating Israel, many Israelis might consider a temporary building suspension even in Jerusalem. But not this way, Jim; not as a one-way American diktat.
The more besieged Israel becomes, the more its enemies in the Arab world and Iran will be tempted to attack us. I don’t believe it’s a coincidence that, as the American-Israeli crisis deepened, we’ve experienced a renewal of rocket attacks from Gaza and even a mini-intifada in Jerusalem. That was a warning of how the jihadists are reading America’s policy shift. If anyone is endangering lives with an ill-conceived policy, it’s the administration which is endangering Israeli—and Palestinian—lives with its disproportionate pressure on Israel.
Best,
Yossi
Dear Yossi,
You fear America is becoming like Europe. (There's a strange Tea Party echo there, but I digress.) Perhaps the U.S. reaction is inevitable, however, given the stasis in Israel. In fact, to an outside observer, it seems as if Israel has been caught in amber.
While you weren't looking, the rest of the world has changed. What troubles Americans today is that Israelis don't seem to get the fact that the United States has fought two wars and fundamentally altered the dynamics of the Middle East. Yet when it comes to Israel, it might as well still be 1980, not 2010.
And so increasingly, the Israeli-Palestinian conflict looks to American eyes like Northern Ireland, an endless conflict fought over land and ethnicity and religion and half-forgotten blood feuds, with a strange immunity to influences from the outside world.
The United States has always supported Israel, even as Europe has grown more distant. But will Americans continue to do so if they don't see progress? If it looks—as it does today—like Israeli leaders are ignoring the larger context?
I saw a cartoon a year or two ago that made me laugh, but also wince. It showed headlines from the future. 2020: "Man returns to Moon, Israeli tanks storm into Gaza." 2050: "Man lands on Mars, Israeli tanks storm into Gaza." 2100: "Man lands on Jupiter, Israeli tanks storm into Gaza."
What is perhaps most ominous for Israel is that slowly but surely, Americans are coming to understand the complexities and nuances of the Middle East. For a time after 9/11, ten-foot tall Arabs replaced ten-foot tall Russians in the American imagination. But that is fading. More and more, Arabs, and Muslims generally, are appearing more human, less monstrous, less dangerous. Nearly a decade of involvement in Iraq and Afghanistan—and nearly a decade without a catastrophic terrorist attack on U.S. soil—will do that to a country and its people.
Arabs are also becoming more integrated and assimilated into American society, and now they are neighbors, too.
I thought about that when I met a Palestinian woman who told me her family's story a few months ago. Her parents had owned a small farm on land that became part of Israel, and in 1948 the farm was seized by Israelis and her family was forced to move. She grew up in Beirut, and as a young woman met and fell in love with a young college student originally from Gaza. She eventually realized that her boyfriend was not just an ordinary college student, but was also in Fatah.
They married, and she stayed in Beirut while he traveled the world for Fatah. After the Israeli invasion of Lebanon, they moved to Tunis along with the organization's leadership.
On a trip to Paris, her husband was killed, almost certainly assassinated by Israeli agents. She eventually found her way to the United States and started over with her small children.
Today, she lives a comfortable life in America, and her two sons are now soccer stars at different colleges in the United States. Her sons are completely Americanized.
I think that story underscores America's greatest strength – and Israel's greatest weakness.
America is a nation built by immigrants, who come here to seek opportunity or to escape discrimination or oppression in other lands. The greatness of the United States is that it is open to immigrants from all lands (a policy constantly under political threat, but that's another story) and the country is bulldozed and remade by each new wave from Ireland, Germany, Italy, Spain, Mexico, China, Japan, Vietnam, Cuba, Haiti, and yes, Palestine. They are Catholics, Protestants, Jews, Muslims, Hindus, atheists. The Census Bureau now projects that by 2050, a majority of Americans will be members of groups now considered minorities. Certainly, illegal immigration is always a hot political issue, but there is general support for legal immigration, because Americans realize that immigrants bring strength, skills, talent, brainpower, ideas.
The great American idea was transparency. The great American political battles have always been about fighting nativist fears, fighting discrimination, and forcing the country to live up to its ideal of a society open to all.
Israel, on the other hand, seems to be a democracy that has taken counsel of its fears. It seems to hate a changing world, and is a country that wants to pick a fight with the demographer. Israel wants to be both a democracy and a Jewish state. But will the United States keep providing support when and if those two goals seem increasingly at odds, as Israel has to keep building more walls?
So I guess the question is not whether the Obama Administration will apply a little pressure here and there on the margins, just enough to piss off Jerusalem, but not enough to accomplish much. The real question for the longer term is, when will an American president begin to force Israel to confront its future, and open itself up to the Middle East of the 21st century?
Best,
Jim
Dear Jim,
You say that Israel has been caught in amber, even as the rest of the world has changed. Not so: Israel has changed beyond recognition. We're no longer an ideological, pioneering state but a high-tech society that desperately wants to be part of the globalizing world. And Israelis are willing to pay the territorial price for that admission—provided we can be reassured that a Palestinian state wouldn't turn into an even worse nightmare than the one we're caught in now.
In urging Israelis to face reality and accept Palestinian statehood, you're pushing against an open door. That argument was resolved, at least in theory, 20 years ago, during the first intifada, when a majority of Israelis concluded that the occupation would devastate Israel from within and turn us into a pariah from without.
A majority of Israelis agree that ending the occupation is an existential need—to spare us from growing isolation, from the moral attrition of occupation, from the untenable choice between Israel as a Jewish state and a democratic state.
But that's only half the equation. You ignore the other half: that a Palestinian state could turn into an existential threat to Israel. Most Israelis are convinced that, given the current state of the Palestinian national movement, an Israeli withdrawal from the West Bank would lead to missile attacks against the Israeli heartland, including greater Tel Aviv and Ben-Gurion Airport. All it takes is a few "primitive rockets" to be launched every day against Israeli neighborhoods—and for the international community to tie our hands when we try to defend ourselves—for normal life in this country to become impossible.
In order to make your case against Israel, you have to ignore the fact that Israel tried—three times in the last decade—to create a Palestinian state. Palestinian leaders rejected the equivalent of one hundred percent of the West Bank and Gaza, because that deal would have required them to restrict refugee return to a Palestinian state. The Palestinian pre-condition for an Israeli withdrawal is that Israel commit suicide. As a veteran Peace Now activist said to me recently: The Palestinians won't let us end the occupation.
We've tried negotiations and got suicide bombings; we tried unilateral withdrawal without negotiations and got rocket attacks. What would you have us do next?
What's so depressing about your position, Jim, is that it offers proof that Arab intransigence is winning, that with enough time, the combination of terrorism and denial of Israel's legitimacy will wear down even friends of Israel like you. And then the Middle East conflict seems to turn into an endless blood feud. Or that stupid journalistic phrase, a cycle of violence. And then what you once knew about the conflict—that at crucial moments Israel has accepted compromise and the Palestinians have rejected it—gets lost in the general weariness.
Yes, Israeli tanks will almost certainly "storm into Gaza" again. But that cartoon you cite omits these crucial words: "Palestinians shell Israeli towns and then Israeli tanks storm into Gaza." But hey, that's just a detail in the endless blood feud. So is the fact that we pulled out of Gaza. And that most of us would pull out of the West Bank if we didn't think it would turn into Gaza.
There's a curious obtuseness running through your position—and in this you are by no means alone among our colleagues in the media. Israel, you write, has a "strange immunity to influences from the outside world." In fact Netanyahu has given in to the Obama administration on two crucial issues.
First, he accepted a two-state solution—for the first time placing the Likud within the national consensus in support of a Palestinian state. And he suspended housing starts across the West Bank, including in settlement blocs near the border slated to be part of Israel according to every peace plan. No Israeli leader ever went as far. Yet Netanyahu is treated virtually as a war monger. Why, Israelis wonder, should we give in to the next Obama demand on Jerusalem when we've gotten zero credit for giving in to his other demands—while the Palestinians, who refuse to even show up at the table, are treated with kid gloves?
Finally, you raise the question of Israel as a Jewish state versus a democratic state. For me, erasing either identity would do fatal damage to Israel's soul. An Israel that has cut itself off from Jewish responsibility would not have rescued tens of thousands of Jews in Ethiopia. And that's an Israel I would not want to live in.
Israel is fated to be both a Jewish state that is responsible for Jews around the world and for Jewish history, and a democratic state that makes room in its national identity for its non-Jewish citizens. How to reconcile those two non-negotiable needs is the most important domestic issue facing Israel.
I would hope that Americans would appreciate the complexity of our dilemmas, tell us when we're wrong and back us against the international campaign to deny Israel's legitimacy. That, at least, is what I expect from a friend.
Best,
Yossi
Thursday, April 15, 2010
A Word on Tiger Woods by a Guy
March 30, 2010, 9:09 pm
Tiger’s Moral Hazard
By ROBERT WRIGHT
“There are so many young boys you influence.”
“That’s right,” said Roy.“You’ve got to give them your best.”
“I try to do that.”
“I mean as a man too.”
He nodded.
“The Natural,” by Bernard Malamud
When Tiger Woods tees up his Nike golf ball at the first hole of the Masters next week, will you be wishing him well? Or will you hope he yanks his drive into the pines and spends four days trudging toward the searing defeat that, in your view, he richly deserves?
Be honest. This is a moral litmus test. In fact, it’s a test for all of America — a test of where our moral consciousness is these days.
As befits a pronouncement as grand — even grandiose — as the previous sentence, I’ll illustrate it via literary allusion.
Ten years ago, writing in Slate, I noted with mild alarm an eerie parallel between Woods and Roy Hobbs, the baseball player at the center of Bernard Malamud’s 1952 novel “The Natural.” Woods had just said his goal was to be the greatest who ever played the game, and I observed that in Malamud’s story an utterance very much like this precedes the character’s downfall.
I had no idea how faithfully life would imitate art. Woods’s downfall did come, and it came for much the same reason as Hobbs’s downfall. Now the question facing Woods is whether his story will end like Malamud’s novel or like the Hollywood version of the story, the movie that starred Robert Redford as Roy Hobbs.
At the outset of the story, Hobbs is a young slugger with preternatural skill who is headed for stardom when he encounters a seductive young woman named Harriet Bird. She asks him about his ambitions. Eager to impress her — he already has sex on his mind — he says, “Sometimes when I walk down the street I bet people will say there goes Roy Hobbs, the best there ever was in the game.”
She finds his answer disappointing, and when he adds that he may make a lot of money, too, she remains unimpressed. She asks, “Isn’t there something over and above earthly things — some more glorious meaning to one’s life and activities?”
Next thing you know, she has lured him to a hotel room, presumably for a tryst. But, as he gazes at her figure through a translucent negligee, she starts mocking his aspiration to greatness and then pulls out a gun and shoots him.
Hobbs is now where Tiger Woods is. His career is on hold, and where it goes next will depend on whether he has learned his lesson. Harriet Bird has delivered the lesson in surreal, mythic form, and life will now offer Hobbs the chance to show that he grasps it.
There’s a difference between wanting to be the best and wanting to be known as the best, wanting to reap the rewards of renown.
What is the lesson? Woods gave his answer to that question during his televised confession six weeks ago, while talking about his Buddhist upbringing. “Buddhism teaches that a craving for things outside ourselves causes an unhappy and pointless search for security. It teaches me to stop following every impulse and to learn restraint. Obviously I lost track of what I was taught.
Yes, it’s safe to say that Woods has shown poor impulse control. But Buddhist scripture — and its ancestor, Hindu scripture — puts a finer point on the matter. When you pursue great things — great golf, great art, whatever — you shouldn’t do it because of the rewards: the acclaim, the adulation, the sex. There’s a difference between wanting to be the best and wanting to be known as the best, wanting to reap the rewards of renown. “The fruits of action,” as the Bhagavad Gita puts it, are emphatically not the point of action.
I’m not saying any mortal could passionately pursue excellence while wholly abandoning the quest for acclaim and its benefits. But I am saying that virtue involves trying.
In Malamud’s novel, Roy Hobbs doesn’t make much progress on this front. He gets to the big leagues and acquires superstar status but can’t stop indulging his animal appetites. (I assume “The Natural” is a double-entendre.) Malamud conveys Roy’s excess with comically exaggerated scenes of performance-sapping overeating, and Roy shows no more restraint in his sexual appetite. He continues to evince an unerring instinct for the wrong woman, notably a beautiful, materialistic blonde who is drawing him toward corruption.
In the movie version things work out fine. Roy (Redford) resists the lure of this femme fatale (Kim Basinger), falling instead under the spell of a wholesome-looking woman with a tendency to wear white (Glenn Close) — who, very roughly speaking, is Elin Woods. By staying true to her, Roy ends his career on a heroic note, and the movie closes with a scene of familial bliss: a retired Roy teaching the game to his son. Redemption is his.
In the book, not so much. The Kim Basinger character lures Roy into complicity with gamblers, and his attempt to escape their grip comes too late. His sordid life is revealed in the newspapers, along with the punishment: he will be banned from the game, and all his records will be expunged from the annals of baseball. Apparently if you want to be the greatest just so that you’ll be known as the greatest — and enjoy the fruits of fame — the punishment is that you won’t be known as the greatest.
I’m of course not talking about real life. In real life Tiger Woods was known as the greatest while basking licentiously in that reputation, and he may well repeat this performance. But the point of an old-fashioned morality play is to send a message about karmic justice, and Malamud’s novel sends a harsh one.
That the movie version doesn’t is, presumably, a reflection of Hollywood’s preference for happy endings. At the same time, the two endings are also reflections of their respective times.
Malamud was writing in a pretty Calvinistic America. Back then if you were playing a word-association game and someone said “sin,” you were at least as likely to think “damnation” as “forgiveness.”
Does redemption that comes without major atonement send a message that transgression is no big deal?
By the time the movie version came out in 1984, things had changed. That year Oprah Winfrey first appeared on the program that would soon be renamed “The Oprah Winfrey Show” and would become such a showcase for redemption that, when Tiger Woods had his fall, people started counting the days until the seemingly inevitable Oprah cleansing ritual.
Is Oprah’s America a weaker America? Does redemption that comes easily, without major atonement, send a message that transgression is no big deal, and wind up encouraging self-destruction?
Whatever your answer to that question, Tiger Woods is exhibit A, for he has chosen the path of low atonement.
True, he’s taken a hit in income. (He’ll probably be down in the low eight figures this year.) And he’s said he’s sorry. (Good thinking!) But his great goal — and the key to being known as the greatest golfer ever — is to chalk up five more career victories in the four major golf tournaments, thus breaking Jack Nicklaus’s record of 18 majors. If he had waited until after the Masters for his return, he’d be skipping a chance to put one of those notches in his belt.
That’s a modest price (he’d still have 25 or so majors left during his prime), but it’s a price in the currency he values most. And unlike the price he’s paid in lost endorsement money, it would be voluntarily incurred.
But he’s refused to pay it, and this hubris is one thing that makes it tempting to root for his failure. (I’m trying to resist that temptation; I was raised a southern Baptist, and that has left me with a moralistic streak as formidable as Woods’s libido. His story is a rehab opportunity for both of us.)
Of course, you could also root against Woods for less reflexive reasons. He has turned his life into a real-life morality play, and maybe it would be better for his young fans if his story ended badly — if, having shown no real atonement, he was forced to pay a steeper price: never breaking Nicklaus’s record. That would be a lesson to remember.
In any event, that was the tone Bernard Malamud chose. The final piece of dialogue in the book harkens back to the Chicago Black Sox scandal of 1919, when a young fan is said to have pleaded to a fallen star, Shoeless Joe Jackson, “Say it ain’t so, Joe.” A boy hands Roy Hobbs a newspaper reporting his wrongdoing and his banishment from baseball and says, “Say it ain’t true, Roy.”
Malamud ends the book with this passage: “When Roy looked into the boy’s eyes he wanted to say it wasn’t but couldn’t, and he lifted his hands to his face and wept many bitter tears.” Apparently, there will be no redemption for the great one.
But that was then.
Postscript: The Slate column in which I first compared Woods to Roy Hobbs is here. I also wrote an earlier Opinionator column suggesting that the new technologies of transparency may make upstanding — or even seemingly upstanding — role models an endangered species. And, finally, here I have a video dialogue with the blogger Ann Althouse on some of the questions I address in the above column — Tiger as role model, Oprah as arbiter of redemption, etc.
Me:
Dumb, dumb, dumb! T.W. "owes" his "public" nothing but the best golf he can play. That should be the beginning and the end of all this. The above op ed by a normally very smart guy was high falutin palaver from first word to last. That's all.
Tiger’s Moral Hazard
By ROBERT WRIGHT
“There are so many young boys you influence.”
“That’s right,” said Roy.“You’ve got to give them your best.”
“I try to do that.”
“I mean as a man too.”
He nodded.
“The Natural,” by Bernard Malamud
When Tiger Woods tees up his Nike golf ball at the first hole of the Masters next week, will you be wishing him well? Or will you hope he yanks his drive into the pines and spends four days trudging toward the searing defeat that, in your view, he richly deserves?
Be honest. This is a moral litmus test. In fact, it’s a test for all of America — a test of where our moral consciousness is these days.
As befits a pronouncement as grand — even grandiose — as the previous sentence, I’ll illustrate it via literary allusion.
Ten years ago, writing in Slate, I noted with mild alarm an eerie parallel between Woods and Roy Hobbs, the baseball player at the center of Bernard Malamud’s 1952 novel “The Natural.” Woods had just said his goal was to be the greatest who ever played the game, and I observed that in Malamud’s story an utterance very much like this precedes the character’s downfall.
I had no idea how faithfully life would imitate art. Woods’s downfall did come, and it came for much the same reason as Hobbs’s downfall. Now the question facing Woods is whether his story will end like Malamud’s novel or like the Hollywood version of the story, the movie that starred Robert Redford as Roy Hobbs.
At the outset of the story, Hobbs is a young slugger with preternatural skill who is headed for stardom when he encounters a seductive young woman named Harriet Bird. She asks him about his ambitions. Eager to impress her — he already has sex on his mind — he says, “Sometimes when I walk down the street I bet people will say there goes Roy Hobbs, the best there ever was in the game.”
She finds his answer disappointing, and when he adds that he may make a lot of money, too, she remains unimpressed. She asks, “Isn’t there something over and above earthly things — some more glorious meaning to one’s life and activities?”
Next thing you know, she has lured him to a hotel room, presumably for a tryst. But, as he gazes at her figure through a translucent negligee, she starts mocking his aspiration to greatness and then pulls out a gun and shoots him.
Hobbs is now where Tiger Woods is. His career is on hold, and where it goes next will depend on whether he has learned his lesson. Harriet Bird has delivered the lesson in surreal, mythic form, and life will now offer Hobbs the chance to show that he grasps it.
There’s a difference between wanting to be the best and wanting to be known as the best, wanting to reap the rewards of renown.
What is the lesson? Woods gave his answer to that question during his televised confession six weeks ago, while talking about his Buddhist upbringing. “Buddhism teaches that a craving for things outside ourselves causes an unhappy and pointless search for security. It teaches me to stop following every impulse and to learn restraint. Obviously I lost track of what I was taught.
Yes, it’s safe to say that Woods has shown poor impulse control. But Buddhist scripture — and its ancestor, Hindu scripture — puts a finer point on the matter. When you pursue great things — great golf, great art, whatever — you shouldn’t do it because of the rewards: the acclaim, the adulation, the sex. There’s a difference between wanting to be the best and wanting to be known as the best, wanting to reap the rewards of renown. “The fruits of action,” as the Bhagavad Gita puts it, are emphatically not the point of action.
I’m not saying any mortal could passionately pursue excellence while wholly abandoning the quest for acclaim and its benefits. But I am saying that virtue involves trying.
In Malamud’s novel, Roy Hobbs doesn’t make much progress on this front. He gets to the big leagues and acquires superstar status but can’t stop indulging his animal appetites. (I assume “The Natural” is a double-entendre.) Malamud conveys Roy’s excess with comically exaggerated scenes of performance-sapping overeating, and Roy shows no more restraint in his sexual appetite. He continues to evince an unerring instinct for the wrong woman, notably a beautiful, materialistic blonde who is drawing him toward corruption.
In the movie version things work out fine. Roy (Redford) resists the lure of this femme fatale (Kim Basinger), falling instead under the spell of a wholesome-looking woman with a tendency to wear white (Glenn Close) — who, very roughly speaking, is Elin Woods. By staying true to her, Roy ends his career on a heroic note, and the movie closes with a scene of familial bliss: a retired Roy teaching the game to his son. Redemption is his.
In the book, not so much. The Kim Basinger character lures Roy into complicity with gamblers, and his attempt to escape their grip comes too late. His sordid life is revealed in the newspapers, along with the punishment: he will be banned from the game, and all his records will be expunged from the annals of baseball. Apparently if you want to be the greatest just so that you’ll be known as the greatest — and enjoy the fruits of fame — the punishment is that you won’t be known as the greatest.
I’m of course not talking about real life. In real life Tiger Woods was known as the greatest while basking licentiously in that reputation, and he may well repeat this performance. But the point of an old-fashioned morality play is to send a message about karmic justice, and Malamud’s novel sends a harsh one.
That the movie version doesn’t is, presumably, a reflection of Hollywood’s preference for happy endings. At the same time, the two endings are also reflections of their respective times.
Malamud was writing in a pretty Calvinistic America. Back then if you were playing a word-association game and someone said “sin,” you were at least as likely to think “damnation” as “forgiveness.”
Does redemption that comes without major atonement send a message that transgression is no big deal?
By the time the movie version came out in 1984, things had changed. That year Oprah Winfrey first appeared on the program that would soon be renamed “The Oprah Winfrey Show” and would become such a showcase for redemption that, when Tiger Woods had his fall, people started counting the days until the seemingly inevitable Oprah cleansing ritual.
Is Oprah’s America a weaker America? Does redemption that comes easily, without major atonement, send a message that transgression is no big deal, and wind up encouraging self-destruction?
Whatever your answer to that question, Tiger Woods is exhibit A, for he has chosen the path of low atonement.
True, he’s taken a hit in income. (He’ll probably be down in the low eight figures this year.) And he’s said he’s sorry. (Good thinking!) But his great goal — and the key to being known as the greatest golfer ever — is to chalk up five more career victories in the four major golf tournaments, thus breaking Jack Nicklaus’s record of 18 majors. If he had waited until after the Masters for his return, he’d be skipping a chance to put one of those notches in his belt.
That’s a modest price (he’d still have 25 or so majors left during his prime), but it’s a price in the currency he values most. And unlike the price he’s paid in lost endorsement money, it would be voluntarily incurred.
But he’s refused to pay it, and this hubris is one thing that makes it tempting to root for his failure. (I’m trying to resist that temptation; I was raised a southern Baptist, and that has left me with a moralistic streak as formidable as Woods’s libido. His story is a rehab opportunity for both of us.)
Of course, you could also root against Woods for less reflexive reasons. He has turned his life into a real-life morality play, and maybe it would be better for his young fans if his story ended badly — if, having shown no real atonement, he was forced to pay a steeper price: never breaking Nicklaus’s record. That would be a lesson to remember.
In any event, that was the tone Bernard Malamud chose. The final piece of dialogue in the book harkens back to the Chicago Black Sox scandal of 1919, when a young fan is said to have pleaded to a fallen star, Shoeless Joe Jackson, “Say it ain’t so, Joe.” A boy hands Roy Hobbs a newspaper reporting his wrongdoing and his banishment from baseball and says, “Say it ain’t true, Roy.”
Malamud ends the book with this passage: “When Roy looked into the boy’s eyes he wanted to say it wasn’t but couldn’t, and he lifted his hands to his face and wept many bitter tears.” Apparently, there will be no redemption for the great one.
But that was then.
Postscript: The Slate column in which I first compared Woods to Roy Hobbs is here. I also wrote an earlier Opinionator column suggesting that the new technologies of transparency may make upstanding — or even seemingly upstanding — role models an endangered species. And, finally, here I have a video dialogue with the blogger Ann Althouse on some of the questions I address in the above column — Tiger as role model, Oprah as arbiter of redemption, etc.
Me:
Dumb, dumb, dumb! T.W. "owes" his "public" nothing but the best golf he can play. That should be the beginning and the end of all this. The above op ed by a normally very smart guy was high falutin palaver from first word to last. That's all.
Summary Judgment: Old Wine, New Bottles, Assumed Facts
Aronowicz v. Emtwo Properties Inc., 2010 ONCA 96 (CanLII)
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Plaintiff was a 50% shareholder of a company—“E”.The other 50% shareholder triggered a triggered a shotgun buy-sell. He acquired plaintiff’s shares. Plaintiff found out that acquirer’s financing came in part from his agreement to repay the loan for those acquisition funds by agreeing to transfer three of E’s companies to the lender. Plaintiff sued E et al and alleged breach of fiduciary obligation, bad faith, theft of corporate opportunity, disclosure of confidential information and waiver of tort.
Defendants moved for summary judgment dismissing the action, which was granted. Plaintiff appealed to the Ontario Court of Appeal and the appeal was dismissed.
The Court of Appeal said:
1. The summary judgment test is “whether there is a genuine issue of material fact that needed a trial for its resolution.
2. Saying “no chance of success” is another way of articulating that test—that is to say, where there are no genuine issues of fact requiring a trial for determination and the claim cannot be proved on the basis of the undisputed facts, the action should not be allowed to go to trial.
3. The judge was not in the circumstances barred from assuming the existence of certain facts in order to dispose of the summary judgment motion. A judge can’t assume the existence of critically disputed facts for the purposes of a summary judgment motion where there exist any issues to be tried in which any otherwise assumed facts are germane to the issues and in dispute and where any such assumption would:
a. undermine a party’s ability to present facts in relation to another issue still to be determined; or
b. risk inconsistent factual findings.
4. Here the motions judge accepted the existence of duties of good faith and honesty and the scope of that duty as Plaintiff asserted it. That assumed duty did Plaintiff no good if on the undisputed facts the parties conduct under the shotgun provisions did not give rise to, or attract, such a duty. Here they did not. Here the question of whether the defendant was obliged to disclose the terms of his loan agreement—the issue under which the judge assumed certain facts—was not a triable issue.
5. No fiduciary duty between the parties arose under the triggered shotgun provisions. A shotgun buy sell in a unanimous shareholders’ agreement is a fundamental corporate mechanism for the exercise of corporate self-interest and does not give rise to, attract, fiduciary obligations. Nothing in the relationship between the parties in the context of the shot gun buy sell carried any indicia of a fiduciary obligation.
6. The loan agreement including the companies to be transferred to the lender was not a misappropriation of a corporate opportunity by the defendant. No critical facts were in dispute relating to the disclosure of confidential information to the lender or relating to the disclosure’s impact on E or the parties. The undisputed evidence did not support a finding that Plaintiff had a reasonable expectation that Defendant would keep private E information from third parties. Defendant’s disclosure didn’t breach confidentiality or amount to fiduciary breach or oppression because there was no evidence of any harm or detriment to E or Plaintiff or any profit to Defendant caused by Defendant’s disclosure of confidential information to the lender. The claims of deceit and negligent misrepresentation failed for the same reason—no evidence of harm or detriment to E or the Plaintiff or of profit by Defendant.
Some dicta:
[15] The proper test for summary judgment – as articulated by Morden A.C.J.O. in Irving Ungerman Ltd. v. Galanis reflex, (1991), 4 O.R. (3d) 545, at pp. 550-551 – is whether there is a genuine issue of material fact that requires a trial for its resolution. Neither Aguonie v. Galion Solid Waste Material Inc. 1998 CanLII 954 (ON C.A.), (1998), 38 O.R. (3d) 161 (C.A.), nor Dawson v. Rexcraft Storage and Warehouse Inc. 1998 CanLII 4831 (ON C.A.), (1998), 164 D.L.R. (4th) 257 (Ont. C.A.) – the two summary judgment authorities most referred to in this Province – alter this test. Indeed, they affirm it. What Augonie and Dawson and their jurisprudential progeny have done is develop a more restricted view of the analytical approach to be adopted by the summary judgment motion judge and of the judge’s role in determining the “genuine issue for trial” question.
17] The motion judge was alive to, and applied, the appropriate test and the approach to such motions mandated by Augonie and Dawson, and more recently by the Supreme Court of Canada in Canada (Attorney General) v. Lameman, 2008 SCC 14 (CanLII), [2008] 1 S.C.R. 372[1] and Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (S.C.C.), [1999] 3 S.C.R. 423. In this respect, the motion judge explained:
The principles applicable to a summary judgment motion are most succinctly set out in Dawson v. Rexcraft Storage and Warehouse Inc. 1998 CanLII 4831 (ON C.A.), (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), in which Borins J.A. states at para. 13 that the essential purpose of summary judgment is to isolate, and then terminate, claims and defences that are factually unsupported. A defendant who seeks to dismiss an action on a summary judgment motion bears the burden of proving that there is no genuine issue of a material fact requiring a trial. On a summary judgment motion, the Court is not to assess credibility, weigh evidence or draw factual inferences. On the other hand, the Court is entitled to assume that the record contains all of the evidence which the parties will present if there is a trial.
In the present motion, the issue for the Court is, for the most part, whether the undisputed facts before the Court support any of the causes of action alleged by the plaintiffs. The issue is not whether a genuine issue for trial exists with respect to facts that are material for one or more causes of action. Rather, the issue is whether, on the record before the Court, any or all of the plaintiffs’ causes of action are so doubtful that the case does not deserve consideration by a trier of fact at a future trial: see Pizza Pizza Ltd. v. Gillespie 1990 CanLII 4023 (ON S.C.), (1990), 75 O.R. (2d) 225 (Gen. Div.) at 238 and Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14 (CanLII), [2008] 1 S.C.R. 372 at para. 10, both of which appear to have involved the same exercise.
On this motion, therefore, the Court is required to give a good hard look at the evidence and to grant summary judgment if it concludes that “the facts do not entitle the plaintiff to some remedy from the defendant”: see Dawson v. Rexcraft at para. 13. In Papaschase at para. 10, the Supreme Court appears to have set the test for summary judgment to be demonstration that the claims “have no chance of success”. I have adopted this standard on this motion.
While similar to a Rule 21 motion, I have therefore approached the issue on this motion as a determination not as to whether the pleadings disclose a reasonable cause of action but as to whether the plaintiffs’ various causes of action have no chance of success based on the undisputed facts before the Court. I should note, as well, that I do not agree with the plaintiffs that the Court is entitled to make only one determination of law pursuant to Rule 20.04(4) on a summary judgment motion. Rule 20.04(4) is sufficiently flexible to be applied separately in respect of each cause of action. A party cannot prevent summary judgment by alleging a multiplicity of unmeritorious causes of action.
19] In Lameman (referred to by the motion judge in the passage cited above as Papaschase), the Supreme Court of Canada summarized its view on summary judgment motions, at paras. 10-11:[2]
This appeal is from an application for summary judgment. The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.
For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (S.C.C.), [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club 1995 CanLII 1686 (ON C.A.), (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. reflex, (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute or counter the defendant's evidence, or risk summary dismissal: Murphy Oil Co. v. Predator Corp. 2004 ABQB 688 (CanLII), (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff'd 2006 ABCA 69 (CanLII), (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. 1996 CanLII 7979 (ON S.C.), (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14 (CanLII), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30. [Emphasis added.]
[46] I am not satisfied that the motion judge erred by engaging in an exercise of weighing the evidence and drawing inferences of the type prohibited on motions for summary judgment. Leaving aside the facts underpinning the appellants’ allegation of a duty of honesty and good faith – which were assumed at their highest, in favour of the appellants – the material facts in the action were not in dispute.
[47] The appellants rely heavily on the well-accepted principle that causes of action involving allegations of fiduciary duties, good faith, oppression and misrepresentation are individually fact-laden. In determining whether, on the specific facts, the duty has been breached, they contend, “there is no substitute … for a meticulous examination of the facts”: Hodgkinson v. Simms, 1994 CanLII 70 (S.C.C.), [1994] 3 S.C.R. 377, at pp 413-414. Here, however, the motion judge had a full and complete record before him and the material facts were not in dispute. On that basis he could conduct the requisite “meticulous examination”, and he did so. The brothers were brothers. Emtwo was a family company founded by the brothers and their father together. Abraham had managed its operations for 20 years. Harry had not. There were differences. Harry wanted out. Abraham would not agree to a winding-up. Harry arranged financing and pulled the Shotgun Provision trigger. He did not reveal the contents of his Loan Agreement, but the particulars of that Loan Agreement were before the motion judge.
[48] Mr. Leon submits that the extent of fiduciary duties owed by Harry to Abraham and to Emtwo, the extent of Harry’s duty of good faith owed to Abraham, and matters relating to the oppression remedy must all be considered in the context of the activities and evolving relationship of the brothers and the company over a period of more than 20 years. I agree. But I do not agree that it was impermissible for the motion judge to make that determination on the record before him.
[49] To support this conclusion, I need not go through the motion judge’s lengthy reasoning and analysis with respect to each of the causes of action asserted, and the myriad ways of asserting those causes of action contained within them (Mr. Lax says there are 23 causes of action asserted, and 30 separate claims within them). I am satisfied on the whole, that he was entitled to reject each of the appellant’s claims on the basis that there were no genuine issues that required a trial for their resolution, having regard to the material undisputed facts before him. However, I will touch on some of the causes of action and claims briefly.
[69] The appellants argue that the motion judge impermissibly “granted summary judgment on the basis of significant legal conclusions on novel or unsettled questions of law without the benefit of a full trial record”. They make this submission in relation to three areas of law: (1) the duties of a shareholder/director in exercising a shotgun clause; (2) the law of fiduciary duty, duty of good faith and oppression, and corporate opportunity in the context of a shotgun clause; and (3) the availability of waiver of tort in respect of an action for deceit or misrepresentation.
70] I would not give effect to this ground of appeal either.
[71] Generally, courts are reluctant to determine unsettled matters of law at a pre-trial stage – including on motions for summary judgment – on the theory that new or important questions of law should not be determined on an incomplete factual record: Société Générale, at para. 51; Romano v. D’Onofrio 2005 CanLII 43288 (ON C.A.), (2005), 77 O.R. (3d) 583, at para. 7 (C.A.): Bendix Foreign Exchange Corp. v. Integrated Payment Systems Canada Inc. (2005), 18 C.P.C. (6th) 15, at para. 6 (Ont. C.A.).[4] However, a court may determine a question of law on a motion for summary judgment if it has the necessary undisputed factual record before it, is in just as good a position as the trial judge would be to do so, and is satisfied the only genuine issue is a question of law: see, for example, Bader v. Rennie 2007 CanLII 37674 (ON S.C.D.C.), (2007), 229 O.A.C. 320 (Div. Ct.), at para. 22; Robinson v. Ottawa (City) (2009), 55 M.P.L.R. (4th) 283 (Ont. S.C.), at paras. 63-64; Alexis v. Toronto Police Services Board, 2009 ONCA 847 (CanLII), 2009 ONCA 847, at para. 19.
[72] Here, the motion judge was justified in determining the legal issues presented to him, in my view. They were not novel or unsettled, for the most part, and to the extent they may be considered “novel” – the claim in waiver of tort comes to mind – the motion judge had a sufficient factual foundation to permit their determination.
[73] Recall again that the relationship between the parties is rooted in contract: Harry exercised his rights under the Shotgun Provision. Abraham says he acted wrongfully in the exercise of those rights. What is essentially a complaint about failing to comply with the provisions of a contract is dressed up in the action as a claim for breach of fiduciary duty, breach of a duty of good faith, breach of confidentiality, oppression, misrepresentation, deceit, conspiracy and – if all else fails – waiver of tort. There are times in litigation when the Shakespearean expression “the lady doth protest too much, methinks” has the ring of truth to it.
[74] The facts underlying all of these claims are the same. And the motion judge was satisfied on the basis of the undisputed facts before him, together with facts that he assumed at their highest in favour of the plaintiffs, that none of these claims were made out. Did he err in doing so because the claims were “novel” or “unsettled”? In my opinion, he did not.
[75] There is nothing either novel or unsettled about any of the foregoing causes of action, with the exception of “waiver of tort” (to which I will return). It may be true that there is no specific jurisprudence on the question of the duties of a shareholder/director in the context of exercising a shotgun clause. However, as the motion judge concluded, that alone is not enough to create a genuine issue for trial or to preclude summary judgment on unsettled law grounds, where it is clear there is no chance of success on the factual record, measured against established principles of law. That was the case here.
[76] This was not a pleadings motion. It was a motion for summary judgment. As noted earlier in these Reasons, the motion judge had a very considerable record before him. There had been full examinations for discovery prior to the motion and lengthy cross-examination on the affidavits filed in relation to it. The motion judge thus knew all about the terms of the Unanimous Shareholders’ Agreement and the Loan Agreement, and the facts leading up to their execution. He knew about the business, management and ownership structure of Emtwo. He knew about the business and family relationship between Harry and Abraham, and about all the events that transpired during the relevant period. As Harry’s counsel note in their factum, this was not a case where there were questions crucial to the analysis of the issues that were left unanswered on the record or where expert evidence was required. There was no new evidence to be presented to a trial judge, and the mere prospect that some hoped-for nuance or subtlety might arise in the evidence should the matter go to trial does not turn an application of the facts to well-established legal principles into a “novel” exercise.
[77] The motion judge concluded that:
a) there was no basis for the operation of a fiduciary duty in respect of the exercise of the Shotgun Provision;
b) there was no theft of a corporate opportunity or breach of duty of confidentiality;
c) there was no obligation in relation to the Shotgun Provision that was analogous to the duty “to act reasonably and in good faith” in respect of rights of first refusal;
d) there was no duty of honesty and good faith created by the relationship between Harry and Abraham;
e) there was no genuine issue for trial regarding the extension of the general duty of “honesty and good faith” to include a duty to disclose information such as the Loan Agreement, or to extend that duty to the exercise of the Shotgun Provision; and (having regard to the foregoing)
f) there was no basis for the claims in oppression, misrepresentation, deceit or conspiracy.
[78] These findings were all open to the motion judge based on the undisputed facts and the facts that he chose to accept at their highest in favour of the plaintiffs. They involved no determination of novel or unsettled principles of law.
[79] “Waiver of tort”, on the other hand, qualifies as an uncertain area of the law, but it has no application on the facts of this case, in my view.
[80] Waiver of tort is a restitutionary remedy. There is considerable controversy over whether it exists as an independent cause of action at all or whether it is “parasitic” in the sense that it requires proof of an underlying tort and – since a tort requires damage – proof of harm to the plaintiff. By invoking waiver of tort, a plaintiff gives up the right to sue in tort but seeks to recover on the basis of restitution, claiming the benefits the wrongdoer has derived from the wrongful conduct regardless of whether the plaintiff has suffered damages or not. See, for example, Serhan Estate v. Johnson & Johnson reflex, (2006), 85 O.R. (3d) 665 (Div. Ct), at paras. 45-69, leave to appeal to S.C.C. dismissed, [2006] S.C.C.A. No. 494.
[81] The claim is not so much “novel” – it has its roots in the ancient action of assumpsit – as it is “mysterious” or “mystical”. In their text, The Law of Restitution, Maddaugh and McCamus describe it in this fashion:[5]
The doctrine known as “waiver of tort” is perhaps one of the lesser appreciated areas within the scope of the law of restitution. From the outset, it seems to have engendered an undue amount of confusion and needless complexity. The almost mystical quality that surrounds the doctrine is attested to by the following famous couplet penned by a pleader of old [J.L. Adolphus, “The Circuiteers – An Eclogue” (1885) 1 L.Q. Rev. 232, at p. 233]:
Thoughts much too deep for tears subdue the Court
When I assumpsit bring, and god-like waive a tort.
One source of this confusion stems from the doctrine's very name. As one writer has pointed out, not entirely facetiously, it has “nothing whatever to do with waiver and really very little to with tort”. [Emphasis added.]
[82] While waiver of tort appears to be developing new legs in the class action field – see Serhan Estate and Heward v. Eli Lilly & Co. 2008 CanLII 32303 (ON S.C.D.C.), (2008), 91 O.R. (3d) 691 (Div. Ct.), for example – it is of no assistance to the appellants here. Whether the claim exists as an independent cause of action or whether it requires proof of all the elements of an underlying tort aside, at the very least, waiver of tort requires some form of wrongdoing. The motion judge found none here. No breach of contract. No breach of fiduciary duty, or duty of good faith or confidentiality. No oppression. No misrepresentation. No deceit. No conspiracy. As counsel for Mr. Grinshpan put it in their factum, “its eleventh hour insertion into the statement of claim does not provide the appellants’ claim with a new lifeline given that the record discloses no wrongful conduct on the part of the respondents in respect of any of the causes of action pleaded.”
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Plaintiff was a 50% shareholder of a company—“E”.The other 50% shareholder triggered a triggered a shotgun buy-sell. He acquired plaintiff’s shares. Plaintiff found out that acquirer’s financing came in part from his agreement to repay the loan for those acquisition funds by agreeing to transfer three of E’s companies to the lender. Plaintiff sued E et al and alleged breach of fiduciary obligation, bad faith, theft of corporate opportunity, disclosure of confidential information and waiver of tort.
Defendants moved for summary judgment dismissing the action, which was granted. Plaintiff appealed to the Ontario Court of Appeal and the appeal was dismissed.
The Court of Appeal said:
1. The summary judgment test is “whether there is a genuine issue of material fact that needed a trial for its resolution.
2. Saying “no chance of success” is another way of articulating that test—that is to say, where there are no genuine issues of fact requiring a trial for determination and the claim cannot be proved on the basis of the undisputed facts, the action should not be allowed to go to trial.
3. The judge was not in the circumstances barred from assuming the existence of certain facts in order to dispose of the summary judgment motion. A judge can’t assume the existence of critically disputed facts for the purposes of a summary judgment motion where there exist any issues to be tried in which any otherwise assumed facts are germane to the issues and in dispute and where any such assumption would:
a. undermine a party’s ability to present facts in relation to another issue still to be determined; or
b. risk inconsistent factual findings.
4. Here the motions judge accepted the existence of duties of good faith and honesty and the scope of that duty as Plaintiff asserted it. That assumed duty did Plaintiff no good if on the undisputed facts the parties conduct under the shotgun provisions did not give rise to, or attract, such a duty. Here they did not. Here the question of whether the defendant was obliged to disclose the terms of his loan agreement—the issue under which the judge assumed certain facts—was not a triable issue.
5. No fiduciary duty between the parties arose under the triggered shotgun provisions. A shotgun buy sell in a unanimous shareholders’ agreement is a fundamental corporate mechanism for the exercise of corporate self-interest and does not give rise to, attract, fiduciary obligations. Nothing in the relationship between the parties in the context of the shot gun buy sell carried any indicia of a fiduciary obligation.
6. The loan agreement including the companies to be transferred to the lender was not a misappropriation of a corporate opportunity by the defendant. No critical facts were in dispute relating to the disclosure of confidential information to the lender or relating to the disclosure’s impact on E or the parties. The undisputed evidence did not support a finding that Plaintiff had a reasonable expectation that Defendant would keep private E information from third parties. Defendant’s disclosure didn’t breach confidentiality or amount to fiduciary breach or oppression because there was no evidence of any harm or detriment to E or Plaintiff or any profit to Defendant caused by Defendant’s disclosure of confidential information to the lender. The claims of deceit and negligent misrepresentation failed for the same reason—no evidence of harm or detriment to E or the Plaintiff or of profit by Defendant.
Some dicta:
[15] The proper test for summary judgment – as articulated by Morden A.C.J.O. in Irving Ungerman Ltd. v. Galanis reflex, (1991), 4 O.R. (3d) 545, at pp. 550-551 – is whether there is a genuine issue of material fact that requires a trial for its resolution. Neither Aguonie v. Galion Solid Waste Material Inc. 1998 CanLII 954 (ON C.A.), (1998), 38 O.R. (3d) 161 (C.A.), nor Dawson v. Rexcraft Storage and Warehouse Inc. 1998 CanLII 4831 (ON C.A.), (1998), 164 D.L.R. (4th) 257 (Ont. C.A.) – the two summary judgment authorities most referred to in this Province – alter this test. Indeed, they affirm it. What Augonie and Dawson and their jurisprudential progeny have done is develop a more restricted view of the analytical approach to be adopted by the summary judgment motion judge and of the judge’s role in determining the “genuine issue for trial” question.
17] The motion judge was alive to, and applied, the appropriate test and the approach to such motions mandated by Augonie and Dawson, and more recently by the Supreme Court of Canada in Canada (Attorney General) v. Lameman, 2008 SCC 14 (CanLII), [2008] 1 S.C.R. 372[1] and Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (S.C.C.), [1999] 3 S.C.R. 423. In this respect, the motion judge explained:
The principles applicable to a summary judgment motion are most succinctly set out in Dawson v. Rexcraft Storage and Warehouse Inc. 1998 CanLII 4831 (ON C.A.), (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), in which Borins J.A. states at para. 13 that the essential purpose of summary judgment is to isolate, and then terminate, claims and defences that are factually unsupported. A defendant who seeks to dismiss an action on a summary judgment motion bears the burden of proving that there is no genuine issue of a material fact requiring a trial. On a summary judgment motion, the Court is not to assess credibility, weigh evidence or draw factual inferences. On the other hand, the Court is entitled to assume that the record contains all of the evidence which the parties will present if there is a trial.
In the present motion, the issue for the Court is, for the most part, whether the undisputed facts before the Court support any of the causes of action alleged by the plaintiffs. The issue is not whether a genuine issue for trial exists with respect to facts that are material for one or more causes of action. Rather, the issue is whether, on the record before the Court, any or all of the plaintiffs’ causes of action are so doubtful that the case does not deserve consideration by a trier of fact at a future trial: see Pizza Pizza Ltd. v. Gillespie 1990 CanLII 4023 (ON S.C.), (1990), 75 O.R. (2d) 225 (Gen. Div.) at 238 and Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14 (CanLII), [2008] 1 S.C.R. 372 at para. 10, both of which appear to have involved the same exercise.
On this motion, therefore, the Court is required to give a good hard look at the evidence and to grant summary judgment if it concludes that “the facts do not entitle the plaintiff to some remedy from the defendant”: see Dawson v. Rexcraft at para. 13. In Papaschase at para. 10, the Supreme Court appears to have set the test for summary judgment to be demonstration that the claims “have no chance of success”. I have adopted this standard on this motion.
While similar to a Rule 21 motion, I have therefore approached the issue on this motion as a determination not as to whether the pleadings disclose a reasonable cause of action but as to whether the plaintiffs’ various causes of action have no chance of success based on the undisputed facts before the Court. I should note, as well, that I do not agree with the plaintiffs that the Court is entitled to make only one determination of law pursuant to Rule 20.04(4) on a summary judgment motion. Rule 20.04(4) is sufficiently flexible to be applied separately in respect of each cause of action. A party cannot prevent summary judgment by alleging a multiplicity of unmeritorious causes of action.
19] In Lameman (referred to by the motion judge in the passage cited above as Papaschase), the Supreme Court of Canada summarized its view on summary judgment motions, at paras. 10-11:[2]
This appeal is from an application for summary judgment. The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.
For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (S.C.C.), [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club 1995 CanLII 1686 (ON C.A.), (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. reflex, (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute or counter the defendant's evidence, or risk summary dismissal: Murphy Oil Co. v. Predator Corp. 2004 ABQB 688 (CanLII), (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff'd 2006 ABCA 69 (CanLII), (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. 1996 CanLII 7979 (ON S.C.), (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14 (CanLII), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30. [Emphasis added.]
[46] I am not satisfied that the motion judge erred by engaging in an exercise of weighing the evidence and drawing inferences of the type prohibited on motions for summary judgment. Leaving aside the facts underpinning the appellants’ allegation of a duty of honesty and good faith – which were assumed at their highest, in favour of the appellants – the material facts in the action were not in dispute.
[47] The appellants rely heavily on the well-accepted principle that causes of action involving allegations of fiduciary duties, good faith, oppression and misrepresentation are individually fact-laden. In determining whether, on the specific facts, the duty has been breached, they contend, “there is no substitute … for a meticulous examination of the facts”: Hodgkinson v. Simms, 1994 CanLII 70 (S.C.C.), [1994] 3 S.C.R. 377, at pp 413-414. Here, however, the motion judge had a full and complete record before him and the material facts were not in dispute. On that basis he could conduct the requisite “meticulous examination”, and he did so. The brothers were brothers. Emtwo was a family company founded by the brothers and their father together. Abraham had managed its operations for 20 years. Harry had not. There were differences. Harry wanted out. Abraham would not agree to a winding-up. Harry arranged financing and pulled the Shotgun Provision trigger. He did not reveal the contents of his Loan Agreement, but the particulars of that Loan Agreement were before the motion judge.
[48] Mr. Leon submits that the extent of fiduciary duties owed by Harry to Abraham and to Emtwo, the extent of Harry’s duty of good faith owed to Abraham, and matters relating to the oppression remedy must all be considered in the context of the activities and evolving relationship of the brothers and the company over a period of more than 20 years. I agree. But I do not agree that it was impermissible for the motion judge to make that determination on the record before him.
[49] To support this conclusion, I need not go through the motion judge’s lengthy reasoning and analysis with respect to each of the causes of action asserted, and the myriad ways of asserting those causes of action contained within them (Mr. Lax says there are 23 causes of action asserted, and 30 separate claims within them). I am satisfied on the whole, that he was entitled to reject each of the appellant’s claims on the basis that there were no genuine issues that required a trial for their resolution, having regard to the material undisputed facts before him. However, I will touch on some of the causes of action and claims briefly.
[69] The appellants argue that the motion judge impermissibly “granted summary judgment on the basis of significant legal conclusions on novel or unsettled questions of law without the benefit of a full trial record”. They make this submission in relation to three areas of law: (1) the duties of a shareholder/director in exercising a shotgun clause; (2) the law of fiduciary duty, duty of good faith and oppression, and corporate opportunity in the context of a shotgun clause; and (3) the availability of waiver of tort in respect of an action for deceit or misrepresentation.
70] I would not give effect to this ground of appeal either.
[71] Generally, courts are reluctant to determine unsettled matters of law at a pre-trial stage – including on motions for summary judgment – on the theory that new or important questions of law should not be determined on an incomplete factual record: Société Générale, at para. 51; Romano v. D’Onofrio 2005 CanLII 43288 (ON C.A.), (2005), 77 O.R. (3d) 583, at para. 7 (C.A.): Bendix Foreign Exchange Corp. v. Integrated Payment Systems Canada Inc. (2005), 18 C.P.C. (6th) 15, at para. 6 (Ont. C.A.).[4] However, a court may determine a question of law on a motion for summary judgment if it has the necessary undisputed factual record before it, is in just as good a position as the trial judge would be to do so, and is satisfied the only genuine issue is a question of law: see, for example, Bader v. Rennie 2007 CanLII 37674 (ON S.C.D.C.), (2007), 229 O.A.C. 320 (Div. Ct.), at para. 22; Robinson v. Ottawa (City) (2009), 55 M.P.L.R. (4th) 283 (Ont. S.C.), at paras. 63-64; Alexis v. Toronto Police Services Board, 2009 ONCA 847 (CanLII), 2009 ONCA 847, at para. 19.
[72] Here, the motion judge was justified in determining the legal issues presented to him, in my view. They were not novel or unsettled, for the most part, and to the extent they may be considered “novel” – the claim in waiver of tort comes to mind – the motion judge had a sufficient factual foundation to permit their determination.
[73] Recall again that the relationship between the parties is rooted in contract: Harry exercised his rights under the Shotgun Provision. Abraham says he acted wrongfully in the exercise of those rights. What is essentially a complaint about failing to comply with the provisions of a contract is dressed up in the action as a claim for breach of fiduciary duty, breach of a duty of good faith, breach of confidentiality, oppression, misrepresentation, deceit, conspiracy and – if all else fails – waiver of tort. There are times in litigation when the Shakespearean expression “the lady doth protest too much, methinks” has the ring of truth to it.
[74] The facts underlying all of these claims are the same. And the motion judge was satisfied on the basis of the undisputed facts before him, together with facts that he assumed at their highest in favour of the plaintiffs, that none of these claims were made out. Did he err in doing so because the claims were “novel” or “unsettled”? In my opinion, he did not.
[75] There is nothing either novel or unsettled about any of the foregoing causes of action, with the exception of “waiver of tort” (to which I will return). It may be true that there is no specific jurisprudence on the question of the duties of a shareholder/director in the context of exercising a shotgun clause. However, as the motion judge concluded, that alone is not enough to create a genuine issue for trial or to preclude summary judgment on unsettled law grounds, where it is clear there is no chance of success on the factual record, measured against established principles of law. That was the case here.
[76] This was not a pleadings motion. It was a motion for summary judgment. As noted earlier in these Reasons, the motion judge had a very considerable record before him. There had been full examinations for discovery prior to the motion and lengthy cross-examination on the affidavits filed in relation to it. The motion judge thus knew all about the terms of the Unanimous Shareholders’ Agreement and the Loan Agreement, and the facts leading up to their execution. He knew about the business, management and ownership structure of Emtwo. He knew about the business and family relationship between Harry and Abraham, and about all the events that transpired during the relevant period. As Harry’s counsel note in their factum, this was not a case where there were questions crucial to the analysis of the issues that were left unanswered on the record or where expert evidence was required. There was no new evidence to be presented to a trial judge, and the mere prospect that some hoped-for nuance or subtlety might arise in the evidence should the matter go to trial does not turn an application of the facts to well-established legal principles into a “novel” exercise.
[77] The motion judge concluded that:
a) there was no basis for the operation of a fiduciary duty in respect of the exercise of the Shotgun Provision;
b) there was no theft of a corporate opportunity or breach of duty of confidentiality;
c) there was no obligation in relation to the Shotgun Provision that was analogous to the duty “to act reasonably and in good faith” in respect of rights of first refusal;
d) there was no duty of honesty and good faith created by the relationship between Harry and Abraham;
e) there was no genuine issue for trial regarding the extension of the general duty of “honesty and good faith” to include a duty to disclose information such as the Loan Agreement, or to extend that duty to the exercise of the Shotgun Provision; and (having regard to the foregoing)
f) there was no basis for the claims in oppression, misrepresentation, deceit or conspiracy.
[78] These findings were all open to the motion judge based on the undisputed facts and the facts that he chose to accept at their highest in favour of the plaintiffs. They involved no determination of novel or unsettled principles of law.
[79] “Waiver of tort”, on the other hand, qualifies as an uncertain area of the law, but it has no application on the facts of this case, in my view.
[80] Waiver of tort is a restitutionary remedy. There is considerable controversy over whether it exists as an independent cause of action at all or whether it is “parasitic” in the sense that it requires proof of an underlying tort and – since a tort requires damage – proof of harm to the plaintiff. By invoking waiver of tort, a plaintiff gives up the right to sue in tort but seeks to recover on the basis of restitution, claiming the benefits the wrongdoer has derived from the wrongful conduct regardless of whether the plaintiff has suffered damages or not. See, for example, Serhan Estate v. Johnson & Johnson reflex, (2006), 85 O.R. (3d) 665 (Div. Ct), at paras. 45-69, leave to appeal to S.C.C. dismissed, [2006] S.C.C.A. No. 494.
[81] The claim is not so much “novel” – it has its roots in the ancient action of assumpsit – as it is “mysterious” or “mystical”. In their text, The Law of Restitution, Maddaugh and McCamus describe it in this fashion:[5]
The doctrine known as “waiver of tort” is perhaps one of the lesser appreciated areas within the scope of the law of restitution. From the outset, it seems to have engendered an undue amount of confusion and needless complexity. The almost mystical quality that surrounds the doctrine is attested to by the following famous couplet penned by a pleader of old [J.L. Adolphus, “The Circuiteers – An Eclogue” (1885) 1 L.Q. Rev. 232, at p. 233]:
Thoughts much too deep for tears subdue the Court
When I assumpsit bring, and god-like waive a tort.
One source of this confusion stems from the doctrine's very name. As one writer has pointed out, not entirely facetiously, it has “nothing whatever to do with waiver and really very little to with tort”. [Emphasis added.]
[82] While waiver of tort appears to be developing new legs in the class action field – see Serhan Estate and Heward v. Eli Lilly & Co. 2008 CanLII 32303 (ON S.C.D.C.), (2008), 91 O.R. (3d) 691 (Div. Ct.), for example – it is of no assistance to the appellants here. Whether the claim exists as an independent cause of action or whether it requires proof of all the elements of an underlying tort aside, at the very least, waiver of tort requires some form of wrongdoing. The motion judge found none here. No breach of contract. No breach of fiduciary duty, or duty of good faith or confidentiality. No oppression. No misrepresentation. No deceit. No conspiracy. As counsel for Mr. Grinshpan put it in their factum, “its eleventh hour insertion into the statement of claim does not provide the appellants’ claim with a new lifeline given that the record discloses no wrongful conduct on the part of the respondents in respect of any of the causes of action pleaded.”
Monday, April 12, 2010
Thumbs Up Althouse
1. http://bloggingheads.tv/diavlogs/27368
2. me: I liked this exchange for its brevity and for Althouse’s crispness and being correct or at a minimum plausible on nearly every point she took up. On the other hand, I found Bazelon extremely weak and deferring to Althouse, unwilling to stake out a position, and unwilling to argue or even, more generally, simply engage with Althouse.
I thought Althouse was getting increasingly impatient with Bazelon’s limpness and soppiness such that near the end she sounded exasperated when she asked Bazelon “Well, what do you think?” in a kind of pointed way.
I thought Althouse was right to tell Obama to pick a liberal justice and then defend that choice. Bush certainly did that from the other end with Alito and Roberts. (On a side note, Dershowitz makes a good argument for nominees during confirmation hearings having the fortitude to say “This is what I think about x but am open to be persuaded by a better argument.” That is not only intellectually honest compared to the damnable fiction that either “I have no view of x” or, worse, I have never thought about x.”, it comports with reality.)
I liked Althouse’s correct point that Obama voted against, and was vociferous in his opposition to, Allito and Roberts and should want and expect the same from Republicans. Let there be a great debate about the meaning of your Constitution, how it gets approached, about Originalism and Textualism and Breyer's theory of "Active Liberty" and ideas about living trees and judicial activism and so on.
The ritual farce of the present confirmation hearings, so at odds with reality, does much, I have a theory, to deligitimate SCOTUS because people recognize them for the sham they are.
On school bullying, Althouse was especially trenchant. It’s inane, to suggest as did someone above that if solving the problem means throwing a couple of obnoxious kids in jail, then “so be it.” And it misses Althouse’s argument to complain that she opined as she did without knowing the particulars of the Massachusetts case. The same answer applies to both points: Althouse’s was a plausible social policy argument about the misconceived uses of criminal law to address certain types of social problems. There are tons of careful distinctions to be drawn and qualifications to be offered, but here Bazelon and Althouse were as one when it comes to kids being kids and ragging on other kids as they always have done and always will do.
To criminalize mean behavior is an incredible disproportionate intrusion of state power into the daily recurring conduct of our lives. Within certain limits of bullying conduct, as a matter of social policy one would want to start with school sanctions and reserve the criminal law for egregious conduct informed by some degree of what used to quaintly be known as “malice a forethought”.
Reinforcing this point were both women’s objection to the likelihood that the prosecution in the Massachusetts case was a prosecutorial knee jerk to the girl’s suicide and Althouse’s excellent point that if there was not something egregious in the conduct proximate to the suicide then prosecutors are going to be very busy, if there is to be consistency in the law, trying the multitudinous bullies in schools everywhere. It seems self evident to me that one would in the Massachusetts case want to be very wary of how stable was the victim.
Finally on the tea parties, Althouse was least persuasive in concluding that without other evidence she doesn’t believe that John Lewis was called a N… or that the other Congressman was spat on. Some evidence is their own say so; and in the case of the spitting I saw the video of the guy walking and reacting angrily to what looked like something terribly offensive landing on him causing him to flinch and get really mad.
But there is a bigger point here about which Althouse is indubitably correct: the tarring of masses of independent voters by the fringe, despicable actions of people numbering less than ten fingers is an abomination in news coverage and political analysis.
2. me: I liked this exchange for its brevity and for Althouse’s crispness and being correct or at a minimum plausible on nearly every point she took up. On the other hand, I found Bazelon extremely weak and deferring to Althouse, unwilling to stake out a position, and unwilling to argue or even, more generally, simply engage with Althouse.
I thought Althouse was getting increasingly impatient with Bazelon’s limpness and soppiness such that near the end she sounded exasperated when she asked Bazelon “Well, what do you think?” in a kind of pointed way.
I thought Althouse was right to tell Obama to pick a liberal justice and then defend that choice. Bush certainly did that from the other end with Alito and Roberts. (On a side note, Dershowitz makes a good argument for nominees during confirmation hearings having the fortitude to say “This is what I think about x but am open to be persuaded by a better argument.” That is not only intellectually honest compared to the damnable fiction that either “I have no view of x” or, worse, I have never thought about x.”, it comports with reality.)
I liked Althouse’s correct point that Obama voted against, and was vociferous in his opposition to, Allito and Roberts and should want and expect the same from Republicans. Let there be a great debate about the meaning of your Constitution, how it gets approached, about Originalism and Textualism and Breyer's theory of "Active Liberty" and ideas about living trees and judicial activism and so on.
The ritual farce of the present confirmation hearings, so at odds with reality, does much, I have a theory, to deligitimate SCOTUS because people recognize them for the sham they are.
On school bullying, Althouse was especially trenchant. It’s inane, to suggest as did someone above that if solving the problem means throwing a couple of obnoxious kids in jail, then “so be it.” And it misses Althouse’s argument to complain that she opined as she did without knowing the particulars of the Massachusetts case. The same answer applies to both points: Althouse’s was a plausible social policy argument about the misconceived uses of criminal law to address certain types of social problems. There are tons of careful distinctions to be drawn and qualifications to be offered, but here Bazelon and Althouse were as one when it comes to kids being kids and ragging on other kids as they always have done and always will do.
To criminalize mean behavior is an incredible disproportionate intrusion of state power into the daily recurring conduct of our lives. Within certain limits of bullying conduct, as a matter of social policy one would want to start with school sanctions and reserve the criminal law for egregious conduct informed by some degree of what used to quaintly be known as “malice a forethought”.
Reinforcing this point were both women’s objection to the likelihood that the prosecution in the Massachusetts case was a prosecutorial knee jerk to the girl’s suicide and Althouse’s excellent point that if there was not something egregious in the conduct proximate to the suicide then prosecutors are going to be very busy, if there is to be consistency in the law, trying the multitudinous bullies in schools everywhere. It seems self evident to me that one would in the Massachusetts case want to be very wary of how stable was the victim.
Finally on the tea parties, Althouse was least persuasive in concluding that without other evidence she doesn’t believe that John Lewis was called a N… or that the other Congressman was spat on. Some evidence is their own say so; and in the case of the spitting I saw the video of the guy walking and reacting angrily to what looked like something terribly offensive landing on him causing him to flinch and get really mad.
But there is a bigger point here about which Althouse is indubitably correct: the tarring of masses of independent voters by the fringe, despicable actions of people numbering less than ten fingers is an abomination in news coverage and political analysis.
Sunday, April 11, 2010
Nature and Society: N. Pod on Huck Finnn
The New York Times, December 6, 1959
THE LITERARY ADVENTURES OF HUCK FINN
by Norman Podhoretz
(Mr. Podhoretz, a New York editor and fiction critic, first read Mark Twain at the age of 8 or 9, when the works arrived at his home, a volume at a time, as a bonus for a newspaper subscription.)
"Persons attempting to find a motive in this narrative will be prosecuted," wrote Mark Twain in a notice at the head of "The Adventures of Huckleberry Finn"; "persons attempting to find a moral in it will be banished; persons attempting to find a plot in it will be shot." This month marks the seventy-fifth anniversary of the publication of "Huckleberry Finn," and by now the number of candidates for prosecution, banishment and shooting must be very large indeed - far greater than Mark Twain could ever have anticipated. No other American novel (with the possible exception of "Moby Dick") has been so thoroughly ransacked for motives and morals, so lovingly examined, so jealously claimed as an ally in so many different polemical campaigns.
In the early years of the century, Van Wyck Brooks (who had not yet become the leading patriot of American culture) cited it in support of his contention that the crudity of life in the West had combined with the emasculating gentility of the East to cripple the genius of Mark Twain and prevent his proper development as an artist. Some time later, Bernard de Voto, rushing to the defense of the West, pointed to "Huckleberry Finn" itself to refute Brooks, and far from indicting American life for the destruction of Mark Twain, gave it full credit for having produced and nourished him.
More recently, the issue has shifted to deeper ground, and "Huckleberry Finn" is now read as a key to the very essence of the American imagination, a central document of our most primitive impulses. A few years ago, Leslie Fiedler gained a greater degree of notoriety than it is usually given to literary critics to achieve by suggesting that the relation between Huck and Jim expresses the homosexual attraction toward Negroes which Mr. Fiedler discovered hidden in the furthest recesses of the American unconscious. (It is amusing to speculate on the punishment Mark Twain might have thought up for this kind of motive hunting had he been prescient enough to know that it would some day come into fashion.)
Other contemporary critics, more restrained than Mr. Fiedler though hardly less exuberant, have spoken of Huck as an archetype or a mythic figure who embodies the nostalgia for innocence and the fantasy of flight from maturity that are said to be so characteristic of the American soul.
Sooner or later, it seems, all discussions of "Huckleberry Finn" turn into discussions of America - and with good reason. Mark Twain was the quintessential American writer, quintessential because he was more or less untutored - "a natural," as Wright Morris puts it, "who learned to write the way a river pilot learns the feel of a channel." And Richard Chase, in his remarkable book on the American novel, observes that "Huckleberry Finn" is constantly engaged in an "exorcism of false forms" through parody and burlesque, and that the chief exorcism performed by the novel is done upon "European culture itself."
Why did Mark Twain find it necessary to exorcise European culture? Partly, of course, in order to liberate himself from the grip of an approved literary style that bore no relation to living American speech, but also, in my opinion, because what he had to say about life could not have been said by a writer whose attitudes had been molded by the European sense of things.
Someone once quipped that the whole of philosophy is a footnote to Plato, and it might be remarked with equal justice that the whole of European literature is a commentary on the first sentence of Aristotle's "Politics." Man, says European literature in a thousand different ways and in tones ranging from dismay to jubilation - man is by nature a social animal. To conceive of the individual as existing apart from society is an illusion or at best a convenient fiction; there is no State of Nature and there never was one. It was this idea more than anything else, I believe, that Mark Twain was trying to exorcise in "Huckleberry Finn." He was asserting through the image of life on the raft that the State of Nature is a reality, and he was asserting through the character of Huck that the distinction between the individual and society is a true distinction and a necessary one.
Lionel Trilling, in his brilliant introduction to "Huckleberry Finn," takes rather a different view of the matter. Mr. Trilling, of course, recognizes that the novel is built on an opposition between nature and society, but he cautions us against thinking of that opposition as absolute. Huck, he tells us, "is involved in civilization up to his ears," and his flight from society "is but his way of reaching what society ideally dreams of for itself." This interpretation, I should say, is itself in need of exorcism, for it is an attempt to assimilate "Huckleberry Finn" into what I have characterized as the European sense of things.
Surely the fact that Huck "has not run away from Miss Watson and the Widow Douglas and his brutal father to a completely individualistic liberty" only proves that Mark Twain's idea of the State of Nature is not Freud's or Hobbes'. And surely the fact that "responsibility is the very essence of Huck's character" only proves that Mark Twain differs from Mr. Trilling in his view of what belongs to nature and what to civilization. The truth is that all the virtues civilization claims for itself (and which Mr. Trilling claims for it) - responsibility, love, loyalty, generosity and so on - are seen in "Huckleberry Finn" as properties of the State of Nature. Civilization, to be sure, has usurped credit for them, but what else does this novel demonstrate over and over again if not that civilization is really their mortal enemy?
No more devastating comment has ever been made on the fraudulent pretensions of civilization than the great scene in which Huck struggle with himself over the question of whether to turn Jim back to Miss Watson. Huck, of course, is not consciously a rebel against the values of his society, and he never doubts that he has done wrong in helping a runaway slave to escape. After he discovers that the Duke and the King have sold Jim back into captivity, he decides that the hand of Providence has slapped him in the face, "letting me know my wickedness was being watched all the time from up there in heaven, whilst I was stealing a poor old woman's nigger that hadn't ever done me no harm." He tries to console himself with the reflection that "I was brung up wicked, and so I warn't so much to blame," but he is too honest to accept this as an adequate excuse, and finally he scrawls a note to Miss Watson telling her where she can find Jim.
The passage that follows the note is one of the supreme moments in all of literature: "I felt good and all washed clean of sin for the first time I had ever felt so in my life, and I knowed I could pray now. But I didn't do it straight off, but laid the paper down and set there thinking - thinking how good it was all this happened so, and how near I come to being lost and going to hell. And went on thinking. And got to thinking over our trip down the river; and I see Jim before me all the time; in the day and in the night-time, sometimes moonlight, sometimes storms, and we a-floating along, talking and singing and laughing. But somehow I couldn't seem to strike no places to harden me against him, but only the other kind."
And he goes on remembering details of their voyage down the river together, until his glance falls on the note he has just written to Miss Watson. "It was a close place, I took it up, and held it in my hand. I was a-trembling, because I'd got to decide, forever, betwixt two things, and I knowed it. I studied a minute, sort of holding my breath, and then says to myself: 'All right, then, I'll go to hell' - and tore it up. It was awful thoughts and awful words, but they was said. And I let them stay said; and never thought no more about reforming.
We must not be misled by the humor of the concluding lines into supposing that Huck's belief in his own damnation is perfunctory or insincere. Mark Twain is using the device of comic exaggeration - reaching all the way down into hell - in order to make the contrast between the "civilized" values and Huck's natural feelings as stark as he possibly can.
The contempt for civilization that breathes through every page of "Huckleberry Finn" - both the particular civilization Mark Twain was writing about and civilization in general - is only matched in intensity by the reverence for nature embodied in the character of Huck and in the image of the river. The Mississippi, as Mr. Trilling rightly observes, is a god in this novel, and those who attune themselves to its ways are able to share in its power, its vitality and its beauty. There is also danger in the river and destruction and loneliness, for the god has his sullen moods and refuses to be placated. But though the river can maim and kill, it cannot do what society invariably does; it cannot warp a man's feelings into ugly and unnatural shapes, and it cannot distort the clarity of his vision of the truth.
Now that I have succeeded in adding myself to the violators of Mark Twain's ordinance against finding motives in "Huckleberry Finn," I might as well follow Huck's example and go the whole hog in wickedness by looking for a moral, too. The moral, I think, will be obvious to anyone who feels the sharpness of the opposition Mark Twain set up between nature and society. "Huckleberry Finn" is a celebration of the instinctive promptings of the individual against the conditioned self, and a refutation of the heretical idea that reality can be equated with any given set of historical circumstances. This heresy has become even more powerful today than it was seventy-five years ago, and there can e no better protection against the morality of "adjustment" than Mark Twain's uncompromising, hard-headed insistence on the distinction between nature and society.
For that matter, it might be a good idea to pass a law requiring social workers, guidance counselors and all the members of certain schools of psychoanalysis to read "Huckleberry Finn" at least once a year. There is no telling what might happen if the proponents of adjustment were forced into periodic contemplation of a character who is more civilized than his mentors and more mature than his elders precisely by virtue of his refusal to submit to their notion of what is necessary, "natural" and real.
No One Liked It But the Readers
It is one of the smaller ironies of English literature that "Huckleberry Finn," the most American of American books, was first published abroad; by the house of Chatto & Windus of England seventy-five years ago today: Dec. 6, 1884. Even the German edition, issued by Tauchnitz, preceded American publication, and Canadians too had a chance to read the book before American readers. It was finally issued here in early March, 1885. For a volume that has, in recent decades, been almost obscured by critiques, the first critical reactions ranged from silence to scorn.
Most newspapers, including The [New York] Times, ignored the book. Those journals that reviewed it flayed it. New England led the chorus, but other parts of the country contributed their mite. The Concord Library banned the book, characterizing is as "the veriest trash." The Boston Transcript thought the action of the Concord Library superfluous. After sampling an extract in The Century magazine, said that newspaper, "nobody wants to read it." But it was The Springfield Republican that summed up the matter most austerely. "The trouble with Mr. Clemens," said the S. R., "is that he has no reliable sense of propriety." The only bright spot in the whole operation were the readers - 40,000 of them before publication. A few weeks later that figure had risen to 50,000.
THE LITERARY ADVENTURES OF HUCK FINN
by Norman Podhoretz
(Mr. Podhoretz, a New York editor and fiction critic, first read Mark Twain at the age of 8 or 9, when the works arrived at his home, a volume at a time, as a bonus for a newspaper subscription.)
"Persons attempting to find a motive in this narrative will be prosecuted," wrote Mark Twain in a notice at the head of "The Adventures of Huckleberry Finn"; "persons attempting to find a moral in it will be banished; persons attempting to find a plot in it will be shot." This month marks the seventy-fifth anniversary of the publication of "Huckleberry Finn," and by now the number of candidates for prosecution, banishment and shooting must be very large indeed - far greater than Mark Twain could ever have anticipated. No other American novel (with the possible exception of "Moby Dick") has been so thoroughly ransacked for motives and morals, so lovingly examined, so jealously claimed as an ally in so many different polemical campaigns.
In the early years of the century, Van Wyck Brooks (who had not yet become the leading patriot of American culture) cited it in support of his contention that the crudity of life in the West had combined with the emasculating gentility of the East to cripple the genius of Mark Twain and prevent his proper development as an artist. Some time later, Bernard de Voto, rushing to the defense of the West, pointed to "Huckleberry Finn" itself to refute Brooks, and far from indicting American life for the destruction of Mark Twain, gave it full credit for having produced and nourished him.
More recently, the issue has shifted to deeper ground, and "Huckleberry Finn" is now read as a key to the very essence of the American imagination, a central document of our most primitive impulses. A few years ago, Leslie Fiedler gained a greater degree of notoriety than it is usually given to literary critics to achieve by suggesting that the relation between Huck and Jim expresses the homosexual attraction toward Negroes which Mr. Fiedler discovered hidden in the furthest recesses of the American unconscious. (It is amusing to speculate on the punishment Mark Twain might have thought up for this kind of motive hunting had he been prescient enough to know that it would some day come into fashion.)
Other contemporary critics, more restrained than Mr. Fiedler though hardly less exuberant, have spoken of Huck as an archetype or a mythic figure who embodies the nostalgia for innocence and the fantasy of flight from maturity that are said to be so characteristic of the American soul.
Sooner or later, it seems, all discussions of "Huckleberry Finn" turn into discussions of America - and with good reason. Mark Twain was the quintessential American writer, quintessential because he was more or less untutored - "a natural," as Wright Morris puts it, "who learned to write the way a river pilot learns the feel of a channel." And Richard Chase, in his remarkable book on the American novel, observes that "Huckleberry Finn" is constantly engaged in an "exorcism of false forms" through parody and burlesque, and that the chief exorcism performed by the novel is done upon "European culture itself."
Why did Mark Twain find it necessary to exorcise European culture? Partly, of course, in order to liberate himself from the grip of an approved literary style that bore no relation to living American speech, but also, in my opinion, because what he had to say about life could not have been said by a writer whose attitudes had been molded by the European sense of things.
Someone once quipped that the whole of philosophy is a footnote to Plato, and it might be remarked with equal justice that the whole of European literature is a commentary on the first sentence of Aristotle's "Politics." Man, says European literature in a thousand different ways and in tones ranging from dismay to jubilation - man is by nature a social animal. To conceive of the individual as existing apart from society is an illusion or at best a convenient fiction; there is no State of Nature and there never was one. It was this idea more than anything else, I believe, that Mark Twain was trying to exorcise in "Huckleberry Finn." He was asserting through the image of life on the raft that the State of Nature is a reality, and he was asserting through the character of Huck that the distinction between the individual and society is a true distinction and a necessary one.
Lionel Trilling, in his brilliant introduction to "Huckleberry Finn," takes rather a different view of the matter. Mr. Trilling, of course, recognizes that the novel is built on an opposition between nature and society, but he cautions us against thinking of that opposition as absolute. Huck, he tells us, "is involved in civilization up to his ears," and his flight from society "is but his way of reaching what society ideally dreams of for itself." This interpretation, I should say, is itself in need of exorcism, for it is an attempt to assimilate "Huckleberry Finn" into what I have characterized as the European sense of things.
Surely the fact that Huck "has not run away from Miss Watson and the Widow Douglas and his brutal father to a completely individualistic liberty" only proves that Mark Twain's idea of the State of Nature is not Freud's or Hobbes'. And surely the fact that "responsibility is the very essence of Huck's character" only proves that Mark Twain differs from Mr. Trilling in his view of what belongs to nature and what to civilization. The truth is that all the virtues civilization claims for itself (and which Mr. Trilling claims for it) - responsibility, love, loyalty, generosity and so on - are seen in "Huckleberry Finn" as properties of the State of Nature. Civilization, to be sure, has usurped credit for them, but what else does this novel demonstrate over and over again if not that civilization is really their mortal enemy?
No more devastating comment has ever been made on the fraudulent pretensions of civilization than the great scene in which Huck struggle with himself over the question of whether to turn Jim back to Miss Watson. Huck, of course, is not consciously a rebel against the values of his society, and he never doubts that he has done wrong in helping a runaway slave to escape. After he discovers that the Duke and the King have sold Jim back into captivity, he decides that the hand of Providence has slapped him in the face, "letting me know my wickedness was being watched all the time from up there in heaven, whilst I was stealing a poor old woman's nigger that hadn't ever done me no harm." He tries to console himself with the reflection that "I was brung up wicked, and so I warn't so much to blame," but he is too honest to accept this as an adequate excuse, and finally he scrawls a note to Miss Watson telling her where she can find Jim.
The passage that follows the note is one of the supreme moments in all of literature: "I felt good and all washed clean of sin for the first time I had ever felt so in my life, and I knowed I could pray now. But I didn't do it straight off, but laid the paper down and set there thinking - thinking how good it was all this happened so, and how near I come to being lost and going to hell. And went on thinking. And got to thinking over our trip down the river; and I see Jim before me all the time; in the day and in the night-time, sometimes moonlight, sometimes storms, and we a-floating along, talking and singing and laughing. But somehow I couldn't seem to strike no places to harden me against him, but only the other kind."
And he goes on remembering details of their voyage down the river together, until his glance falls on the note he has just written to Miss Watson. "It was a close place, I took it up, and held it in my hand. I was a-trembling, because I'd got to decide, forever, betwixt two things, and I knowed it. I studied a minute, sort of holding my breath, and then says to myself: 'All right, then, I'll go to hell' - and tore it up. It was awful thoughts and awful words, but they was said. And I let them stay said; and never thought no more about reforming.
We must not be misled by the humor of the concluding lines into supposing that Huck's belief in his own damnation is perfunctory or insincere. Mark Twain is using the device of comic exaggeration - reaching all the way down into hell - in order to make the contrast between the "civilized" values and Huck's natural feelings as stark as he possibly can.
The contempt for civilization that breathes through every page of "Huckleberry Finn" - both the particular civilization Mark Twain was writing about and civilization in general - is only matched in intensity by the reverence for nature embodied in the character of Huck and in the image of the river. The Mississippi, as Mr. Trilling rightly observes, is a god in this novel, and those who attune themselves to its ways are able to share in its power, its vitality and its beauty. There is also danger in the river and destruction and loneliness, for the god has his sullen moods and refuses to be placated. But though the river can maim and kill, it cannot do what society invariably does; it cannot warp a man's feelings into ugly and unnatural shapes, and it cannot distort the clarity of his vision of the truth.
Now that I have succeeded in adding myself to the violators of Mark Twain's ordinance against finding motives in "Huckleberry Finn," I might as well follow Huck's example and go the whole hog in wickedness by looking for a moral, too. The moral, I think, will be obvious to anyone who feels the sharpness of the opposition Mark Twain set up between nature and society. "Huckleberry Finn" is a celebration of the instinctive promptings of the individual against the conditioned self, and a refutation of the heretical idea that reality can be equated with any given set of historical circumstances. This heresy has become even more powerful today than it was seventy-five years ago, and there can e no better protection against the morality of "adjustment" than Mark Twain's uncompromising, hard-headed insistence on the distinction between nature and society.
For that matter, it might be a good idea to pass a law requiring social workers, guidance counselors and all the members of certain schools of psychoanalysis to read "Huckleberry Finn" at least once a year. There is no telling what might happen if the proponents of adjustment were forced into periodic contemplation of a character who is more civilized than his mentors and more mature than his elders precisely by virtue of his refusal to submit to their notion of what is necessary, "natural" and real.
No One Liked It But the Readers
It is one of the smaller ironies of English literature that "Huckleberry Finn," the most American of American books, was first published abroad; by the house of Chatto & Windus of England seventy-five years ago today: Dec. 6, 1884. Even the German edition, issued by Tauchnitz, preceded American publication, and Canadians too had a chance to read the book before American readers. It was finally issued here in early March, 1885. For a volume that has, in recent decades, been almost obscured by critiques, the first critical reactions ranged from silence to scorn.
Most newspapers, including The [New York] Times, ignored the book. Those journals that reviewed it flayed it. New England led the chorus, but other parts of the country contributed their mite. The Concord Library banned the book, characterizing is as "the veriest trash." The Boston Transcript thought the action of the Concord Library superfluous. After sampling an extract in The Century magazine, said that newspaper, "nobody wants to read it." But it was The Springfield Republican that summed up the matter most austerely. "The trouble with Mr. Clemens," said the S. R., "is that he has no reliable sense of propriety." The only bright spot in the whole operation were the readers - 40,000 of them before publication. A few weeks later that figure had risen to 50,000.
Huck Finn: Its Critics and the Dream of Freedom
Huckleberry Finn and the Problem of Freedom
Sanford Pinsker
(. . .he ain't no slave; he's as free as any cretur that walks this earth.
Tom Sawyer spilling the beans about Jim.
We're free . . . We're free . . .
Linda Loman at Willy's graveside.)
Freedom is America's abiding subject, as well as its deepest problem. I realize full well that I am hardly the first person to ruminate about the yawning gap between our country's large promises and, its less-than-perfect practice, much less the first to comment on the ways in which 19th-century America struggled with the "peculiar institution" known as slavery. But I am convinced that the way these large topics find a local habitation in the pages of Adventures of Huckleberry Finn is yet another instance in which George Orwell's prophetic words ring true: "It is the first duty of intelligent men to restate the obvious." What Twain means to test out in Huck's idiosyncratic telling of how he and Jim made their way down the river is nothing less than what freedom in America means, and does not mean.
Critics of Twain's novel generally shy away from what makes it simultaneously disturbing and important. So, let me offer the following proposition in the spirit of plain Orwellian speech: Adventures of Huckleberry Finn is a novel that does not blink about all that militates to keep genuine freedom under wraps and in control. Just as the book is as wide as the Mississippi on which many of its most memorable moments are set, it is also wide enough to take on the full range of American culture—from those elements out to elevate to those which run the gamut from the lower-browed to the downright coarse.
At this point, a thumbnail sketch of how the novel has been read, and misread, may be helpful. Adventures of Huckleberry Finn began its long, complicated history as America's most controversial novel shortly after its publication in 1885, when the well-meaning members of the Concord (Mass.) Public Library committee decided to exclude the book from its shelves on the grounds that the story was, in their words, "trashy and vicious." The trouble with Mr. Clemens, they went on to say, was that he had "no reliable sense of propriety." They were, of course, right about this, even if their rightness rather resembles that of a busted watch that tells correct time twice a day. What they worried about, between the words of their carefully crafted objections, is that Twain's novel would corrupt the young—of Concord and, presumably points west and south. The charge is a very old one and has been leveled against those, from Socrates onward, who were regarded as corrupters of the young.
In Twain's case, what he did that so upset the moral arbiters of Concord is boldly announced in the novel's second sentence: "That book [The Adventures of Tom Sawyer], Huck tells us by way of introduction] was made by Mr. Mark Twain, and he told the truth, mainly." The operative word is truth, although we get a pretty good idea about who Huck is and what he stands for by way of his qualifying "mainly."
I shall have more to say about the "mainly" later, but for the moment, let me concentrate on what it means to tell the truth and thus begin our journey down a long, complicated path. One should be aware, for example, that truth-telling, properly understood, is not always what Huck had in mind or what many of Twain's readers imagined when they went about separating lies from the truth. Truth, in short, is one of those words—slippery, troublesome, but nonetheless, of great importance. This is even truer, as it were, at a time when many thinkers positioned on theory's cutting edge confidently insist that "truth" be surrounded by sneer quotes and interrogated until all that remains are the easy certainties of nihilism. Twain would have found this brand of postmodernism very strange indeed, although I hasten to add that the "pursuit of truth" in his novel leads to darker conclusions than theory has yet dreamt of.
One way to explain the difference between versions of truth-telling is to sharply distinguish between small-t truths of the sort that conform to observable "facts" and the large-T Truths that philosophers worry about and writers explore in fiction and poetry. In this latter sense, to tell the truth about the world requires more than a careful attention to realistic detail, however much this was certainly part of Twain's aesthetic agenda. Rather, it is a matter of burning away the social conditioning that puts layers of fat around the soul and that covers the eyes with motes.
In the late 1940's Lionel Trilling, perhaps the most influential critic of his time, famously declared that Huck and Tom Sawyer may tell the lies of children but they do not, in Trilling's words, "tell the ultimate lie of adults: they do not lie to themselves." These characters, who (rightly) believe that "the world is in a conspiracy to lie to [them]," are thus swaddled, Trilling argues, in "moral sensitivity."
In general T. S. Eliot is right about the way that Huck, Twain's satiric persona, works, but there are moments when Huck is not quite all that Eliot claims on his behalf. Take, for example, the moment in which Colonel Sherburn beats back a potential lynch mob by standing up to bullies and taking their cowardly measure. Huck describes the last, tail-between-their-legs moments this way: "The crowd washed back sudden, and then broke all apart and went tearing off every which way, . . . I could a staid, if I'd a wanted to, but I didn't want to." Here, despite Eliot's large pronouncement, is a moment where Huck, in his own term, heaves off a "stretcher." In plainer language, he clearly lies to himself; moreover, we see his feeble rationalization as the sham it surely is.
Why, one wonders, would Twain so embarrass his otherwise savvy protagonist? My hunch is that he means to remind us that Huck is a very young, young boy, despite his sound heart and outbursts of good sense. He is, in short, given to back-sliding of the human sort. This often overlooked point deserves emphasis if only because so many readers, including quite intelligent ones, fall into fits of disappointment whenever Huck—or by extension, Twain—lets them down. This usually occurs when Tom Sawyer enters the scene and bullies poor Huck with his insider knowledge of romance novels, but it can also happen when such readers tire of satire, even of dark, uncompromising satire, and prefer that the novel head off to other, more morally soothing directions.
Eliot makes much the same point about Huck's honesty when he talks about his "vision." He sees the real world, Eliot argues, but "he does not judge it—he allows it to judge itself." Enter Leo Marx's "Mr. Eliot, Mr. Trilling, and Huckleberry Finn," a 1953 essay that attacks both critics as "tender-minded" because they substitute structural arguments (Eliot's paean to the mythic river) or easy platitudes (Trilling's magisterial assertions about Huck's honesty) for the more sober recognition that Twain's novel ends in shambles and failure.
At this point, let me drag in Huck's comment about Mr. Twain telling the truth, mainly. Huck is not especially bothered by this— certainly he is not as lathered up about it as Mr. Marx will be—because, as he puts it, "I never seen anybody but lied, one time or another, without it was Aunt Polly, or the widow, or maybe Mary," Everybody else is given to heaving in "stretchers"; as far as Huck is concerned, they come with the territory. What the novel dramatizes, however, is how dangerous, and indeed, how deadly, certain "stretchers" can become—especially if they are generated by the small-r romantic wish to make quotidian life more glamorous than it in fact is. That romanticism of the sort behind the blood-curdling oaths taken by would-be members of Tom Sawyer's gang is one thing; when it generates the ongoing feud of the Shepherdsons and the Grangerfords, however, this is another matter altogether.
In much the same way that Twain, in Life on the Mississippi, argues that the novels of Sir Walter Scott were singularly responsible for the Civil War, Adventures of Huckleberry Finn presents one episode after another in which romance trumps his ignorant protagonist. For early generations of believers, Satan was the force to reckon with. He was cunning, shape-shifting, and always threatening to steal away with one's soul. Calvinists took his power seriously; no measures were too stern when it came to resisting the many forms his temptations took, whether it be packaged in a whiskey bottle or a pack of playing cards.
Twain may have rather enjoyed kicking Christians in the slats when they refused to act as proper Christians or when their hypocrisy poked out like a sore thumb, but he did not see Satan lurking around every corner. Rather, it was the endless versions of small-r romanticism that got Twain's dander up. They lied—not as simple "stretchers," but as lies. And the biggest lie of all is that anyone, black or white, could be genuinely free.
This is why the current obsession with Twain's failure to address the implications of slavery comes to half a loaf. Yes, slavery was the most visible manifestation of man's inhumanity to man—not just the shackles and the beatings, but also in the systematic way in which an entire people was reduced to chattel property. Jim's line about being a rich man if he owned himself cracks the heart, and I would add, goes a long way to counter those arguments in which Jim is reduced to minstrel clown. Granted, the tone drips out of Twain's pen, just as it does when Tom dramatically proclaims that Jim is as "free as any cretur that walks the earth." Attentive readers cannot help but ask themselves, given all that the book has demonstrated, "How free is this?"—for not only the newly freed Jim, but also for Huck, for Tom, for everyone on the Phelps plantation and for everybody back home.
Granted, no American writer can match Twain when it comes to giving vivid expression to the great abiding dream of being free:
Soon as it was night, out we shoved; when we got her out to about the middle, we let her alone, and let her float wherever the current wanted her to; then we lit the pipes, and dangled our legs in the water and talked about all lands of things—we was always naked, day and night, whenever the mosquitoes would let us. . . . Sometimes we'd have that whole river all to ourselves for the longest time . . . It's lovely to live on a raft. We had the sky, up there, all speckled with stars, and we used to lay on our backs and look up at them, and discuss about whether they was made, or only just happened.
The dream, alas, cannot last, however much it remains lodged in the head of every reader with an ear for the music that language at its most supple can make. As my grandfather used to say about the America he both loved and quarreled with, "You could live if they'll let you." No remark better sums up the history of the Jews, or, with a snip here a tuck there, the necessary fate of Huck and Jim.
Huck's instinctive goodness turns out to be no match for Tom's book-learning and charisma. Indeed, how could it? After all, it is Tom, not Huck, who knows how a proper "evasion" should be conducted, and how to give Jim the theatrical homecoming his protracted suffering deserves. Huck goes along with the former because, well, that is Huck's modus operandi, but he balks at the latter because he's had a bellyful of Tom foolishness. Granted, Twain knew full well that lighting out for the Territory would put Huck in harm's way, and that the lawlessness of the West was an exaggerated mirror of the more "sivilized" lawlessness of the East. Pursue it as Huck will, freedom remains an elusive promise, one that F. Scott Fitzgerald would later characterize as the boats that forever recede into the past no matter how hard one paddles.
Seen one way, Huck is a survivor, with an eye on a warm meal and a trundle bed; seen from another angle, he is the satiric lens through which we see the world's endless capacity for cruelty. That is why Huck's deadpan descriptions of, say, the Duke and the King are so effective. They know—or think they know—all that con men need to work a crowd—namely, that you can't cheat an honest man and, better yet, that there's a sucker born every minute. The same thing applies to Huck's account of the drunks who populate the shore towns and who take an enormous pleasure in setting dogs on fire. Freedom, for these folks, consists of inflicting as much cruelty as they can. Pap is squarely in their camp. He would vote for slavery if it were on all the ballots—that is, if he could stagger to the local polling place. He is, of course, not alone in this sentiment. Indeed, which voter in the world of Twain's novel felt otherwise?
Small wonder, then, that Leo Marx was so infuriated when he took Trilling and Eliot to task in the early 1950's or that Jane Smiley, a novelist of some reputation, recently argued that Harriet Beecher Stowe's Uncle Tom's Cabin is in every way superior to Adventures of Huckleberry Finn. Marx is a critic worth taking seriously. Smiley, unfortunately, is not. She sides with propaganda rather than with art, preferring a work that confirms her politically correct certainties rather than one which questions her unquestioned beliefs. For her, it is not enough that Huck feels a certain way toward Jim, he needs to act—and it is precisely on the level of action (or more precisely still, non action) that Twain's novel so badly fails in Smiley's opinion:
…To invest The Adventures of Huckleberry Finn with "greatness" is to underwrite a very simplistic and evasive theory of what racism is and to promulgate it, philosophically, in schools and the media as well as in academic journals. Surely the discomfort of many readers, black and white, and the censorship battles that have dogged Huck Finn in the last twenty years are understandable in this context. No matter how often the critics "place in context" Huck's use of the word "nigger," they can never fully excuse or fully hide the deeper racism of the novel—the way Twain and Huck use Jim because they really don't care enough about his desire for freedom to let that desire change their plans….
Smiley much prefers Uncle Tom's Cabin because it is full of people acting against slavery, because it is, unashamedly, an Abolitionist manifesto. But after the Civil War resolved the matter at the end of the rifle barrel, after oceans of blood had been spilled, Stowe's novel no longer packed the same immediacy it once did. True enough, Uncle Tom's Cabin retains an importance as an historical novel, but not, I think, as a living (which is to say, disturbing) piece of literature.
As Americans, we bow to no one in our official regard for freedom, but we are also a country whose Pledge of Allegiance insists that, here, there will be "liberty and justice for all." School children mouth the words without every quite realizing that they are a contradiction, that if there is unbridled liberty there cannot be endless liberty. The contradiction also lies at the very heart of Huckleberry Finn. Twain wrote well before Sigmund Freud's Civilization and Its Discontents explained the small-print costs, in repression, deferred gratification, and neurosis, that inevitably come with the clear benefits of civilization. Huck does not want to return to a world that will insist that what he calls "sivilization" be spelled with a c—and moreover that such people are expected to wear shoes and have clean fingernails.
Huck prefers freer space and a separate peace. In this sense, his dream of freedom is the antithesis of Linda Loman's painful recognition that the American Dream of a paid-off house does not, alas, make one "free and clear." Arthur Miller's play is an indictment of a life lived in noisy, manic-depressive desperation. Willy, alas, was a man who never knew who he was, a man who bought into a world where Success lies just around the corner and where "being well liked" will eventually carry the day.
But powerful as Miller's play clearly is, it does not limn freedom as darkly as Twain's novel does. For the problem of freedom in Huckleberry Finn so co-exists with its humor that readers forget just how broad the brush that Twain uses is. Jim's slavery and gradual movement toward freedom is at best only a small part of what the novel is about. Rather, it is Huck's understanding that, unlike Tom, he can never fit into society, added to our growing realization that he will never be free—even should he make it to the Territory and manage to survive—that makes Twain's novel so problematic. In short, Adventures of Huckleberry Finn is a deeply subversive book, not because it is peppered with the N-word or even because some see racism in what is the most anti-racist book ever written in America, but because it tells the Truth—not "mainly," but right down to the core.
Sanford Pinsker
(. . .he ain't no slave; he's as free as any cretur that walks this earth.
Tom Sawyer spilling the beans about Jim.
We're free . . . We're free . . .
Linda Loman at Willy's graveside.)
Freedom is America's abiding subject, as well as its deepest problem. I realize full well that I am hardly the first person to ruminate about the yawning gap between our country's large promises and, its less-than-perfect practice, much less the first to comment on the ways in which 19th-century America struggled with the "peculiar institution" known as slavery. But I am convinced that the way these large topics find a local habitation in the pages of Adventures of Huckleberry Finn is yet another instance in which George Orwell's prophetic words ring true: "It is the first duty of intelligent men to restate the obvious." What Twain means to test out in Huck's idiosyncratic telling of how he and Jim made their way down the river is nothing less than what freedom in America means, and does not mean.
Critics of Twain's novel generally shy away from what makes it simultaneously disturbing and important. So, let me offer the following proposition in the spirit of plain Orwellian speech: Adventures of Huckleberry Finn is a novel that does not blink about all that militates to keep genuine freedom under wraps and in control. Just as the book is as wide as the Mississippi on which many of its most memorable moments are set, it is also wide enough to take on the full range of American culture—from those elements out to elevate to those which run the gamut from the lower-browed to the downright coarse.
At this point, a thumbnail sketch of how the novel has been read, and misread, may be helpful. Adventures of Huckleberry Finn began its long, complicated history as America's most controversial novel shortly after its publication in 1885, when the well-meaning members of the Concord (Mass.) Public Library committee decided to exclude the book from its shelves on the grounds that the story was, in their words, "trashy and vicious." The trouble with Mr. Clemens, they went on to say, was that he had "no reliable sense of propriety." They were, of course, right about this, even if their rightness rather resembles that of a busted watch that tells correct time twice a day. What they worried about, between the words of their carefully crafted objections, is that Twain's novel would corrupt the young—of Concord and, presumably points west and south. The charge is a very old one and has been leveled against those, from Socrates onward, who were regarded as corrupters of the young.
In Twain's case, what he did that so upset the moral arbiters of Concord is boldly announced in the novel's second sentence: "That book [The Adventures of Tom Sawyer], Huck tells us by way of introduction] was made by Mr. Mark Twain, and he told the truth, mainly." The operative word is truth, although we get a pretty good idea about who Huck is and what he stands for by way of his qualifying "mainly."
I shall have more to say about the "mainly" later, but for the moment, let me concentrate on what it means to tell the truth and thus begin our journey down a long, complicated path. One should be aware, for example, that truth-telling, properly understood, is not always what Huck had in mind or what many of Twain's readers imagined when they went about separating lies from the truth. Truth, in short, is one of those words—slippery, troublesome, but nonetheless, of great importance. This is even truer, as it were, at a time when many thinkers positioned on theory's cutting edge confidently insist that "truth" be surrounded by sneer quotes and interrogated until all that remains are the easy certainties of nihilism. Twain would have found this brand of postmodernism very strange indeed, although I hasten to add that the "pursuit of truth" in his novel leads to darker conclusions than theory has yet dreamt of.
One way to explain the difference between versions of truth-telling is to sharply distinguish between small-t truths of the sort that conform to observable "facts" and the large-T Truths that philosophers worry about and writers explore in fiction and poetry. In this latter sense, to tell the truth about the world requires more than a careful attention to realistic detail, however much this was certainly part of Twain's aesthetic agenda. Rather, it is a matter of burning away the social conditioning that puts layers of fat around the soul and that covers the eyes with motes.
In the late 1940's Lionel Trilling, perhaps the most influential critic of his time, famously declared that Huck and Tom Sawyer may tell the lies of children but they do not, in Trilling's words, "tell the ultimate lie of adults: they do not lie to themselves." These characters, who (rightly) believe that "the world is in a conspiracy to lie to [them]," are thus swaddled, Trilling argues, in "moral sensitivity."
In general T. S. Eliot is right about the way that Huck, Twain's satiric persona, works, but there are moments when Huck is not quite all that Eliot claims on his behalf. Take, for example, the moment in which Colonel Sherburn beats back a potential lynch mob by standing up to bullies and taking their cowardly measure. Huck describes the last, tail-between-their-legs moments this way: "The crowd washed back sudden, and then broke all apart and went tearing off every which way, . . . I could a staid, if I'd a wanted to, but I didn't want to." Here, despite Eliot's large pronouncement, is a moment where Huck, in his own term, heaves off a "stretcher." In plainer language, he clearly lies to himself; moreover, we see his feeble rationalization as the sham it surely is.
Why, one wonders, would Twain so embarrass his otherwise savvy protagonist? My hunch is that he means to remind us that Huck is a very young, young boy, despite his sound heart and outbursts of good sense. He is, in short, given to back-sliding of the human sort. This often overlooked point deserves emphasis if only because so many readers, including quite intelligent ones, fall into fits of disappointment whenever Huck—or by extension, Twain—lets them down. This usually occurs when Tom Sawyer enters the scene and bullies poor Huck with his insider knowledge of romance novels, but it can also happen when such readers tire of satire, even of dark, uncompromising satire, and prefer that the novel head off to other, more morally soothing directions.
Eliot makes much the same point about Huck's honesty when he talks about his "vision." He sees the real world, Eliot argues, but "he does not judge it—he allows it to judge itself." Enter Leo Marx's "Mr. Eliot, Mr. Trilling, and Huckleberry Finn," a 1953 essay that attacks both critics as "tender-minded" because they substitute structural arguments (Eliot's paean to the mythic river) or easy platitudes (Trilling's magisterial assertions about Huck's honesty) for the more sober recognition that Twain's novel ends in shambles and failure.
At this point, let me drag in Huck's comment about Mr. Twain telling the truth, mainly. Huck is not especially bothered by this— certainly he is not as lathered up about it as Mr. Marx will be—because, as he puts it, "I never seen anybody but lied, one time or another, without it was Aunt Polly, or the widow, or maybe Mary," Everybody else is given to heaving in "stretchers"; as far as Huck is concerned, they come with the territory. What the novel dramatizes, however, is how dangerous, and indeed, how deadly, certain "stretchers" can become—especially if they are generated by the small-r romantic wish to make quotidian life more glamorous than it in fact is. That romanticism of the sort behind the blood-curdling oaths taken by would-be members of Tom Sawyer's gang is one thing; when it generates the ongoing feud of the Shepherdsons and the Grangerfords, however, this is another matter altogether.
In much the same way that Twain, in Life on the Mississippi, argues that the novels of Sir Walter Scott were singularly responsible for the Civil War, Adventures of Huckleberry Finn presents one episode after another in which romance trumps his ignorant protagonist. For early generations of believers, Satan was the force to reckon with. He was cunning, shape-shifting, and always threatening to steal away with one's soul. Calvinists took his power seriously; no measures were too stern when it came to resisting the many forms his temptations took, whether it be packaged in a whiskey bottle or a pack of playing cards.
Twain may have rather enjoyed kicking Christians in the slats when they refused to act as proper Christians or when their hypocrisy poked out like a sore thumb, but he did not see Satan lurking around every corner. Rather, it was the endless versions of small-r romanticism that got Twain's dander up. They lied—not as simple "stretchers," but as lies. And the biggest lie of all is that anyone, black or white, could be genuinely free.
This is why the current obsession with Twain's failure to address the implications of slavery comes to half a loaf. Yes, slavery was the most visible manifestation of man's inhumanity to man—not just the shackles and the beatings, but also in the systematic way in which an entire people was reduced to chattel property. Jim's line about being a rich man if he owned himself cracks the heart, and I would add, goes a long way to counter those arguments in which Jim is reduced to minstrel clown. Granted, the tone drips out of Twain's pen, just as it does when Tom dramatically proclaims that Jim is as "free as any cretur that walks the earth." Attentive readers cannot help but ask themselves, given all that the book has demonstrated, "How free is this?"—for not only the newly freed Jim, but also for Huck, for Tom, for everyone on the Phelps plantation and for everybody back home.
Granted, no American writer can match Twain when it comes to giving vivid expression to the great abiding dream of being free:
Soon as it was night, out we shoved; when we got her out to about the middle, we let her alone, and let her float wherever the current wanted her to; then we lit the pipes, and dangled our legs in the water and talked about all lands of things—we was always naked, day and night, whenever the mosquitoes would let us. . . . Sometimes we'd have that whole river all to ourselves for the longest time . . . It's lovely to live on a raft. We had the sky, up there, all speckled with stars, and we used to lay on our backs and look up at them, and discuss about whether they was made, or only just happened.
The dream, alas, cannot last, however much it remains lodged in the head of every reader with an ear for the music that language at its most supple can make. As my grandfather used to say about the America he both loved and quarreled with, "You could live if they'll let you." No remark better sums up the history of the Jews, or, with a snip here a tuck there, the necessary fate of Huck and Jim.
Huck's instinctive goodness turns out to be no match for Tom's book-learning and charisma. Indeed, how could it? After all, it is Tom, not Huck, who knows how a proper "evasion" should be conducted, and how to give Jim the theatrical homecoming his protracted suffering deserves. Huck goes along with the former because, well, that is Huck's modus operandi, but he balks at the latter because he's had a bellyful of Tom foolishness. Granted, Twain knew full well that lighting out for the Territory would put Huck in harm's way, and that the lawlessness of the West was an exaggerated mirror of the more "sivilized" lawlessness of the East. Pursue it as Huck will, freedom remains an elusive promise, one that F. Scott Fitzgerald would later characterize as the boats that forever recede into the past no matter how hard one paddles.
Seen one way, Huck is a survivor, with an eye on a warm meal and a trundle bed; seen from another angle, he is the satiric lens through which we see the world's endless capacity for cruelty. That is why Huck's deadpan descriptions of, say, the Duke and the King are so effective. They know—or think they know—all that con men need to work a crowd—namely, that you can't cheat an honest man and, better yet, that there's a sucker born every minute. The same thing applies to Huck's account of the drunks who populate the shore towns and who take an enormous pleasure in setting dogs on fire. Freedom, for these folks, consists of inflicting as much cruelty as they can. Pap is squarely in their camp. He would vote for slavery if it were on all the ballots—that is, if he could stagger to the local polling place. He is, of course, not alone in this sentiment. Indeed, which voter in the world of Twain's novel felt otherwise?
Small wonder, then, that Leo Marx was so infuriated when he took Trilling and Eliot to task in the early 1950's or that Jane Smiley, a novelist of some reputation, recently argued that Harriet Beecher Stowe's Uncle Tom's Cabin is in every way superior to Adventures of Huckleberry Finn. Marx is a critic worth taking seriously. Smiley, unfortunately, is not. She sides with propaganda rather than with art, preferring a work that confirms her politically correct certainties rather than one which questions her unquestioned beliefs. For her, it is not enough that Huck feels a certain way toward Jim, he needs to act—and it is precisely on the level of action (or more precisely still, non action) that Twain's novel so badly fails in Smiley's opinion:
…To invest The Adventures of Huckleberry Finn with "greatness" is to underwrite a very simplistic and evasive theory of what racism is and to promulgate it, philosophically, in schools and the media as well as in academic journals. Surely the discomfort of many readers, black and white, and the censorship battles that have dogged Huck Finn in the last twenty years are understandable in this context. No matter how often the critics "place in context" Huck's use of the word "nigger," they can never fully excuse or fully hide the deeper racism of the novel—the way Twain and Huck use Jim because they really don't care enough about his desire for freedom to let that desire change their plans….
Smiley much prefers Uncle Tom's Cabin because it is full of people acting against slavery, because it is, unashamedly, an Abolitionist manifesto. But after the Civil War resolved the matter at the end of the rifle barrel, after oceans of blood had been spilled, Stowe's novel no longer packed the same immediacy it once did. True enough, Uncle Tom's Cabin retains an importance as an historical novel, but not, I think, as a living (which is to say, disturbing) piece of literature.
As Americans, we bow to no one in our official regard for freedom, but we are also a country whose Pledge of Allegiance insists that, here, there will be "liberty and justice for all." School children mouth the words without every quite realizing that they are a contradiction, that if there is unbridled liberty there cannot be endless liberty. The contradiction also lies at the very heart of Huckleberry Finn. Twain wrote well before Sigmund Freud's Civilization and Its Discontents explained the small-print costs, in repression, deferred gratification, and neurosis, that inevitably come with the clear benefits of civilization. Huck does not want to return to a world that will insist that what he calls "sivilization" be spelled with a c—and moreover that such people are expected to wear shoes and have clean fingernails.
Huck prefers freer space and a separate peace. In this sense, his dream of freedom is the antithesis of Linda Loman's painful recognition that the American Dream of a paid-off house does not, alas, make one "free and clear." Arthur Miller's play is an indictment of a life lived in noisy, manic-depressive desperation. Willy, alas, was a man who never knew who he was, a man who bought into a world where Success lies just around the corner and where "being well liked" will eventually carry the day.
But powerful as Miller's play clearly is, it does not limn freedom as darkly as Twain's novel does. For the problem of freedom in Huckleberry Finn so co-exists with its humor that readers forget just how broad the brush that Twain uses is. Jim's slavery and gradual movement toward freedom is at best only a small part of what the novel is about. Rather, it is Huck's understanding that, unlike Tom, he can never fit into society, added to our growing realization that he will never be free—even should he make it to the Territory and manage to survive—that makes Twain's novel so problematic. In short, Adventures of Huckleberry Finn is a deeply subversive book, not because it is peppered with the N-word or even because some see racism in what is the most anti-racist book ever written in America, but because it tells the Truth—not "mainly," but right down to the core.
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